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District Court of Western Australia |
Last Updated: 8 September 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION : PERTH
CITATION : POLLARD -v- ENDALE PTY LTD [2009] WADC 135
CORAM : DAVIS DCJ
HEARD : 28 AUGUST 2009
DELIVERED : Delivered Extemporaneously on 28 AUGUST 2009 typed from tape and edited by the Judge
PUBLISHED : 1 SEPTEMBER 2009
FILE NO/S : CIV 823 of 2005
BETWEEN : ROBERT JAMES POLLARD
Plaintiff
AND
ENDALE PTY LTD
Defendant
Catchwords:
Application to adjourn trial
Legislation:
Rules of the Supreme Court O 1 r 4(a) and r
4(b)
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr I T Blatchford
Defendant : Ms C A Elphick
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : DLA Phillips Fox
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; [2009] HCA 27
Pollard v Endale Pty Ltd [2009] WADC 97
1 DAVIS DCJ: This action which was first commenced in April 2005 has been listed for trial for five days commencing 7 September 2009. By application filed 24 August 2009 the plaintiff has applied to adjourn the trial.
Background to the plaintiff's application to adjourn the trial
2 The claim by the plaintiff against the defendant is in negligence. It arises from two operations on the plaintiff's ankle carried out by Dr David Kennedy at the defendant's hospital in Mount Lawley on 25 May 1999 and 23 November 1999. The plaintiff claims the defendant failed to take reasonable care and skill in the selection of Dr Kennedy on its panel of medical practitioners permitting him to operate at the hospital when he was not qualified to carry out the particular surgery which he did on the plaintiff and failed to adequately monitor Dr Kennedy's performance. Relevant to these issues are the procedures the defendant had in place to ensure that it did exercise reasonable care and skill in the selection of Dr Kennedy and the monitoring of his performance.
3 The operations by Dr Kennedy on the plaintiff's ankle were unsuccessful. An inquiry into Dr Kennedy's methods was conducted by the Medical Board in 2001. The notice of inquiry by the Medical Board has been annexed to the affidavit of Sharad Chandra Nigam sworn 21 August 2009 in support of the plaintiff's application for the adjournment of this trial ("the affidavit"). The notice of inquiry was based on carelessness or incompetence in the performance of the procedure known as ball diathermy upon patients listed in a Schedule attached to that notice. The plaintiff was one of the patients listed in that Schedule and the particulars of the complaint were "excessive and prolonged use of ball electrode". The plaintiff was informed by the Medical Board in October 2001 that Dr Kennedy had pleaded guilty to the complaint set out in the notice of inquiry.
4 According to the affidavit the plaintiff instituted proceedings against Dr Kennedy in May 2003 in District Court action number CIV 954 of 2003. That action was settled. Shortly after settlement was reached, however, Dr Kennedy entered into an arrangement pursuant to Pt X of the Bankruptcy Act 1966 and the plaintiff only received a small amount in satisfaction of the settlement sum. The plaintiff then instructed his solicitors to issue proceedings against the defendant.
5 A substituted statement of claim filed 27 April 2006 in this action sets out the basis of the plaintiff's allegations that the defendant had, by allowing Dr Kennedy to operate on the plaintiff in the defendant's hospital, breached its duty of care to the plaintiff. The pleaded breaches are:
6 The defendant sought and obtained further and better particulars of these allegations, including the period of time during which the plaintiff alleged the defendant ought to have monitored each operation performed by Dr Kennedy at the hospital, the records completed by him and the progress of patients operated by him. In the answers to that request for further and better particulars the plaintiff relied upon the hospital audit procedures and hospital accreditation standards.
7 Discovery took place and the defendant provided a list of documents dated 8 August 2006 which discovered the Mount Lawley Private Hospital Practitioners' Policy Manual and the plaintiff's patient pre-admission form, dated 23 November 1999. That form mentioned that the hospital had been accredited with the Australian Council of Healthcare Standards ("ACHS"). The plaintiff's solicitors wrote to the defendant's solicitors seeking further discovery of particular documents, which related to the hospital's accreditation with ACHS. The plaintiff followed this up with an application brought by chamber summons for specific discovery on 28 August 2006, but that application was unsuccessful.
8 Very little happened in the action for two years. In June 2008, the defendant entered this action for trial. According to the affidavit, there was some issue as to whether the entry for trial papers had, in fact, been served on the plaintiff's solicitors. However, the affidavit, which is very vague as to dates, says the plaintiff's solicitors were at around this time investigating briefing an appropriate medical practitioner to provide an opinion on the issue of the defendant's liability. The plaintiff obtained Dr Jon B Mulligan as an expert and he, under cover of a letter dated 7 November 2008, advised that he required further information, including documents relating to the defendant's accreditation with ACHS. Dr Mulligan did, in fact, provide a report to the plaintiff's solicitors, dated 19 November 2008, where he expressed certain opinions on matters, on the assumption that the defendant was accredited with ACHS, and having regard to ACHS criteria.
9 The report of Dr Mulligan of 19 November 2008 is annexed to the affidavit, sworn in support of this application for adjournment of the trial. In that report, Dr Mulligan addressed four specific issues in some detail having regard to what was already discovered and contained in ACHS criteria:
10 Dr Mulligan's report of 19 November 2008 and his earlier letter, dated 7 November, provided the basis for another application brought by the plaintiff in December 2008, for further and better discovery of specific documents from the defendant. The substance of Dr Mulligan's report was annexed to an affidavit of Mr Nigam, sworn in support of that application, on 11 December 2008 (Annexure D). Also annexed to the affidavit of Mr Nigam of 11 December 2008 and relied on for the application was a copy of a document called EQuIP guide version 2 ("the EQuIP guide"), forming part of the ACHS standards, setting out ACHS criteria on a number of topics.
11 The plaintiff's application for discovery of specific documents was heard by Deputy Registrar Harman, who on 12 January 2009, refused to make the orders sought. That decision was taken on appeal and the appeal heard by Sleight DCJ. His decision was delivered on 10 July 2009, with written reasons: see Pollard v Endale Pty Ltd [2009] WADC 97. Sleight DCJ allowed the appeal in part and orders were made for the defendant to provide discovery of specific documents relating to the defendant's hospital's ACHS accreditation.
12 The defendant provided that specific discovery on 12 August 2009 ("the supplementary discovery"). The documents discovered included the defendant's response to various ACHS criteria for accreditation.
13 It appears that a directions hearing took place on the 19 August 2009 before Registrar Kingsley, at which stage the plaintiff foreshadowed that he would be bringing an application to vacate the trial dates. The plaintiff was directed to bring any application to vacate the trial on or before 21 August 2009, and the application was to be listed before a Judge on an expedited basis. That application, which is the present application before me, was not brought until 24 August 2009.
The grounds of the plaintiff's application to adjourn
14 The essence of the plaintiff's application to vacate the trial dates is, so far as I can ascertain from the matters set out in the affidavit, based on four matters:
15 In relation to the first two grounds of the application, I do not consider that an adjournment would be justified on either of these grounds.
16 It is not clear to me how Dr Mulligan could say whether or not there were other documents which should be in the defendant's custody, power or control. The principles relevant to an application for further and better discovery are set out in Sleight DCJ's decision in Pollard v Endale Pty Ltd (supra) at [10]. Whether or not there are other documents in existence should be apparent from the supplementary discovery, and whether those documents are relevant to the pleaded issues is a matter for the court, provided of course that there is no re-agitation of the application for further and better discovery which has already been made and heard by Sleight DCJ.
17 In terms of the amendments to the statement of claim, a minute of proposed amendments could be readily made and filed by the plaintiff and determined next week before the trial commences. A late application to amend would not, particularly in these circumstances, justify an application for an adjournment of the trial. I need to also bear in mind the recent principles relating to applications to amend and adjourn, set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; [2009] HCA 27. No indication has been given to me of the likely amendments to be made, and an application is not before me.
18 It is really the third and fourth grounds for the application for adjournment which I need to look at in some detail, having regard to what is contained in the affidavit, the pleadings, the plaintiff's previous application for further and better discovery, and the reasons of Sleight DCJ in allowing only part of the plaintiff's application for that further and better discovery.
Application to adjourn based on the need to interrogate
19 The third ground for the plaintiff's application to adjourn is that it will be necessary for the plaintiff to administer interrogatories for the examination of the defendant on the following issues which arise from the defendant's discovery, in its supplementary discovery, of pages from a document produced by the defendant for its ACHS accreditation. The document is entitled "Survey Report (Template) - Continuum of Care - Mount Lawley Private Hospital 348450" ("the Survey Report"). That Survey Report addresses relevant ACHS criteria.
20 The plaintiff refers first to what is addressed in Criterion 1.5.2 of the Survey Report where it provides for "continued assessment by staff with updating of care planning when necessary". From this entry, the plaintiff submits that this implies the defendant should have monitored and noted the plaintiff's lack of improvement following the first surgery, and prior to the second surgery by Dr Kennedy, in order to avoid Dr Kennedy's repeated clinical surgical mistakes.
21 It is necessary to construe the words relied on by the plaintiff having regard to what Criterion 1.5.2 provides. The opening words of the criterion are "care is delivered in a timely, safe and appropriate manner according to professional standards, medico-legal and statutory requirements". From this and the other entries made under this Criterion, it is apparent that this relates to care of the patient while the patient is in the hospital. It does not mean or imply that the defendant should have monitored the plaintiff following the first surgery, and before the second surgery.
22 The report of Dr Mulligan dated 19 November 2008 addressed this issue based on the ACHS standards. Dr Mulligan, at point 4 of his report, stated that:
"4.1 As a private hospital, it will not usually be aware nor would it be obliged to ascertain the progress of a patient after discharge unless it had contracted to provide post-discharge care. Accordingly it would not necessarily know that the first surgery was unsuccessful, nor would it necessarily follow that the admission of a patient for further surgery was a consequence of deficient initial treatment, there being many valid clinical reasons why such a course of action may be required.
4.2 The hospital is obliged to monitor and evaluate in-hospital care ... and if evidence emerged of problems with Dr Kennedy's care then a decision to formally conduct a review of that care issuing a clinical review committee of suitable composition may have been appropriate ...
In my opinion, the grounds for appointing a clinical review committee for otherwise referring Dr Kennedy's clinical practices did not arise from the failure of the first surgery. If however the hospital had other information, either from its own sources or from external advice such as complaints that a significant number of Dr Kennedy's patients had unsatisfactory clinical outcomes, then it should have taken action to determine whether Dr Kennedy performance (sic) was at acceptable levels."
23 On the plaintiff's own expert evidence, the defendant cannot monitor a patient after discharge, and is only responsible for a patient's care while in hospital. In light of this expert evidence, there would be no basis to interrogate the defendant. In addition, as I have already noted, Dr Mulligan's report was relied upon in support of the plaintiff's application for specific discovery brought in December 2008. Had there been any basis for the plaintiff to seek to leave to administer interrogatories for answer by the defendant on this aspect, then an appropriate application should have been brought by the plaintiff at that time, and not raised now, only days before the commencement of the trial.
24 The plaintiff also refers to Criterion 3.2.3 of the Survey Report, which states that "staff are accountable for the care and/or services they give and for the delineated responsibilities". I note that these are the opening words of Criterion 3.2.3, which was also set out in the EQuIP guide as referred to by the plaintiff when the application for further and better discovery was brought in December 2008. It is argued on behalf of the plaintiff that this implies the defendant was required to monitor Dr Kennedy's performance on the first surgery before allowing him to perform a second surgery on the plaintiff. In my view, no such implication could arise from the terms of Criterion 3.2.3. Having regard to the plain meaning of those words, what else is set out in the document discovered by the defendant as well as the EQuIP guide, this Criterion addresses how the hospital is to ensure the responsibilities and accountabilities of hospital staff, including the provision of job descriptions, rostering and so on. I note also from the survey report that the criteria make a distinction between "staff" and "medical officers", or "MO's". Dr Kennedy was a medical officer, not a member of the hospital staff. In any event, these words in Criterion 3.2.3 were known to the plaintiff in December 2008. Had there been any basis for the plaintiff to seek leave to interrogate the defendant on this matter, then an appropriate application should have been brought by the plaintiff at that time.
25 I consider that there is no merit in the matters relied on by the plaintiff to support the ground that an adjournment is required in order that the plaintiff may interrogate the defendant. The matters about which the plaintiff now says it wishes to interrogate were known to the plaintiff at the latest in December 2008, both from Dr Mulligan's reports and from the EQuIP guide. There is no explanation provided by the plaintiff as to why the issue of the need to interrogate the defendant is only raised at this late stage. In my view, this ground does not justify an adjournment of the trial.
Application to adjourn based on the need for further discovery
26 The fourth ground relied on by the plaintiff as a basis for adjourning the trial is that further discovery should be obtained from the defendant. The plaintiff relies again on certain criteria set out in the Survey Report.
27 The first criterion relied on is Criterion 3.1.1. There are three aspects of this upon which the plaintiff relies.
28 The first is a statement that "external service providers e.g. physiotherapists, are verified/qualified in their field". The plaintiff submits the defendant has not yet provided any evidence to support its defence that Dr Kennedy was trained for arthroscopic surgery. The statement in Criterion 3.1.1 does not reveal that there is any further document or documents which exist and are in the possession of the defendant which relate to a matter in issue in this action. The affidavit of Catherine Anne Elphick, sworn 27 August 2009 in opposition to the plaintiff's application to adjourn the trial, confirms the defendant has discovered Dr Kennedy's curriculum vitae and his accreditation application which sets out his qualifications. The fact that the defendant was not trained in arthroscopic surgery is an allegation that was made at the outset by the plaintiff in its pleading in par 14.1 and par 14.2 of the statement of claim. The onus is on the plaintiff to prove what is alleged in those paragraphs. In my view, there is no merit in this submission made by the plaintiff.
29 The next passage of Criterion 3.1.1 relied on is a statement "theatre utilisation monitoring in assessing staffing allocations". The submission made by the plaintiff is the defendant has not discovered any documents in the form of written instructions or memoranda to theatre staff as to the scope of Dr Kennedy's access to theatre facilities as required by ACHS. That submission, in my view, misconceives and misunderstands what Criterion 3.1.1 provides. The opening words of Criterion 3.1.1 states "Human resources planning supports and meets the strategic and operational plans". The reference to theatre utilisation monitoring under this Criterion is designed, on its plain wording, to assess how often and when theatres are used so that staff can be allocated for those theatres. This statement in Criterion 3.1.1 does not reveal that there is any further document or documents which exist and are in the possession of the defendant which relate to a matter in issue in this action. It does not refer to monitoring the scope of medical practitioner's access to theatre facilities, a matter which has been confirmed in the affidavit of Ms Elphick. In so far as there is an issue as to whether Dr Kennedy ought to have had access to the hospital theatre facilities, that issue will be determined by whether or not, as is already alleged in par 14.1 and par 14.2 of the statement of claim, the defendant in fact failed to take reasonable care in selecting Dr Kennedy to its panel of medical practitioners, having regard to the qualifications that he did in fact have.
30 Finally, in relation to this Criterion in 3.1.1 the plaintiff submits that the defendant has not discovered any documents as to whether the failed arthroscopic procedures conducted by Dr Kennedy on the plaintiff were audited or reviewed by any medical review committee to avoid similar mistakes in the future by him. This is an allegation that following the surgery, as opposed to prior to the surgery, the particular surgery on the plaintiff ought to have been reviewed. That has already been reviewed by Dr Mulligan in his report and suffers from the same difficulties that I have already outlined when I addressed Criterion 1.5.2.
31 The next Criterion relied on by the plaintiff as giving rise to the need for the defendant to provide further discovery is Criterion 3.1.2, which states "all medical officers are credentialed through the HAC" and "credentialing now occurs at specific meetings, minutes, records". It is submitted that the defendant has not discovered minutes of the meeting where Dr Kennedy was credentialed. Further and better discovery of documents relating to Dr Kennedy's accreditation at the hospital was the subject of the plaintiff's previous application for specific discovery as determined by Sleight DCJ on 10 July 2009. In item 1.2 of the plaintiff's application the plaintiff sought any document or class of documents relating to:
"1.2.3 Any deliberations of the defendant or its health advisory committee in relation to Dr Kennedy's appointment."
32 Sleight DCJ, in his decision, declined to make orders in relation to those documents sought by the plaintiff because there was no material before him to conclude that such documents might exist and had not been discovered, although he did say that after discovery of the other documents which he had ordered, there might be a basis for seeking further discovery or requiring the defendant to confirm by affidavit that no such documents exist. In the light of the specific reference in Criterion 3.1.2 to the fact that credentialing occurs at meetings with minutes recorded, I would be prepared to direct that the defendant file a further affidavit specifically deposing to whether such document exists or not and if it does, producing it for inspection before the commencement of the trial. I do not consider that this would delay the trial or justify an adjournment of the trial to commence on 7 September 2009.
33 The next criterion upon which the plaintiff relies to argue that there are further documents which the defendant should discover is Criterion 3.2.1 which states "qualifications and registrations must have appropriate supporting documentation". It is submitted in the affidavit that the defendant has not discovered any documents which should have been provided to the defendant to ensure that Dr Kennedy was qualified to conduct arthroscopic surgery. As I have already observed, the defendant has discovered documents relating to Dr Kennedy's accreditation, his CV and application for accreditation. There is nothing in Criterion 3.2.1 which suggests the existence of further documents relating to Dr Kennedy's qualifications. I do not consider this to provide any basis for an application now for specific discovery as the plaintiff suggests and certainly not a basis to adjourn the trial listed to commence on 7 September 2009.
34 In relation to Criterion 3.2.1 there is also a statement that "M.O's" - by which I understand to mean medical officers - "must provide registration provider members and insurance details". The plaintiff submits the defendant has not discovered any documents which show that Dr Kennedy had a valid professional indemnity insurance at the time of performing the first and second surgery on the plaintiff. The issue in this action brought by the plaintiff against the defendant relates to the selection of Dr Kennedy and whether or not he was qualified to undertake the surgery which he did on the plaintiff. The issue of whether or not Dr Kennedy had professional indemnity insurance is not the subject of any pleaded issue. Insofar as the plaintiff now argues that it is relevant, the issue of professional indemnity insurance was a matter that was raised in Dr Mulligan's report dated 19 November 2008. The plaintiff had the opportunity in light of that report to seek specific discovery in relation to the professional indemnity insurance held by Dr Kennedy at the time it brought its application for specific discovery in December 2008, but the plaintiff did not do so. There is no explanation as to why it is only now that details of the professional indemnity insurance of Dr Kennedy and now said to be relevant and are only now being sought. I do not consider there is any merit on this ground and the issue of whether or not Dr Kennedy had professional indemnity insurance at the time of his accreditation is irrelevant.
35 Finally, the plaintiff relies on Criterion 3.2.3 which states "annual reviews are held". On the basis of this statement, the submission made by the plaintiff is that the defendant has not provided any documents relating to annual reviews on Dr Kennedy for his clinical work in the hospital. I have already explained what Criterion 3.2.3 provides for and I do not accept that the reference to annual reviews is a reference to reviews of Dr Kennedy's clinical work in the hospital. In the plaintiff's application for specific discovery brought in December 2008, documents of that nature were sought again in par 1.2 of the application which read:
"1.2.4 Any documents relevant to the EQuIP standard that requires regular review of credentials and scope of practice for medical practitioners such as Dr Kennedy who has clinical access at the hospital."
36 I consider that here the plaintiff is really agitating something which has already been heard and dismissed by Sleight DCJ in July this year. In my view, there is nothing in the Criterion 3.2.3 of the Survey Report which would lead me to conclude that there is any further basis for seeking further discovery on this issue or that there is in existence any further documents which ought be discovered.
37 Apart from the reference to the requirement for the credentialing of medical officers to be minuted as set out in Criterion 3.1.2 of the Survey Report, I consider that there is no merit in the matters relied on by the plaintiff to support the ground that an adjournment is required because the supplementary discovery reveals the need for further discovery of documents by the defendant. In my view, this ground does not justify an adjournment of the trial.
Conclusion
38 In my view the arguments that the plaintiff has raised in seeking an adjournment of the trial lack merit and do not justify the adjournment sought. In many respects, as I have identified, information relating to the matters about which the plaintiff now says he wishes to interrogate the defendant was available to the plaintiff and his solicitors last year at the time of receiving Dr Mulligan's report dated 19 November 2008. Other additional information which the plaintiff contends he needs to seek by way of further discovery arising from the Survey Report discovered in the supplementary discovery are either not relevant or peripheral to the issues in dispute in this trial.
39 This is not a situation where the plaintiff will be "shut out" from litigating a relevant issue which is fairly arguable. The plaintiff is in a situation where the issues have not altered since 2006. The plaintiff already has information on those issues, including the expert report of Dr Mulligan. The plaintiff ought to be ready to proceed to trial. In these circumstances I cannot see any prejudice to the plaintiff's case if the trial were not to be adjourned.
40 I must also take into consideration the consequences of an adjournment to the defendant. It is relevant that the plaintiff first commenced this action more than four years ago in April 2005 in relation to events which took place ten years ago in 1999. No longer should an adjournment be granted on the basis that a costs order or the imposition of other conditions can adequately balance the defendant's competing claims to justice. The defendant is entitled to a just resolution of the issues in this action with minimum delay and expense: see the Rules of the Supreme Court O 1, r 4(a) and r 4(b) and Aon Risk Services Australia Ltd v Australian National University (supra) at [5], [6], [27], [36], [98] and [133]. I need to take into account that there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. In my view there will be prejudice to the defendant if the trial is adjourned which cannot be remedied by a costs order. After all this time the defendant is entitled to have resolution of the issue of its liability.
41 Also, following the principle set out in Aon Risk Services Australia Ltd v Australian National University, the proper exercise of my discretion involves my taking into account inefficiencies in the use of the court as a publicly funded resource arising from the vacation or adjournment of trials as well as the need to maintain public confidence in the judicial system. The public interests in the efficient use of court resources, is a relevant consideration in the exercise of my discretion whether or not to adjourn.
42 Given the nature of the plaintiff's application, the time when it was brought, the circumstances in which the adjournment is sought and the other matters I have addressed, I consider that I should not adjourn the trial and that there will be no prejudice to the plaintiff if the trial is not adjourned.
43 For these reasons I refuse the plaintiff's application to adjourn.
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