SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCase Title: Bennett v Australian Capital Territory

Citation: [2016] ACTSC 258

Hearing Date: 5 August 2016

Decision Date: 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 first decide 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 to only 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), rr 52, 53, 242, 502, 503, 514Limitation 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 175Brickfield Properties Ltd v Newton [1971] 3 All ER 328Dornan v JW Ellis & Co Ltd [1962] 1 QB 583Golski v Kirk [1987] FCA 200; (1987) 14 FCR 143

Kenjar v Australian Capital Territory [2014] ACTSC 69Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522Meredith v Commonwealth [2009] ACTSC 168Morgan v Banning (1999) 20 WAR 474Naidu v Fergusson [2013] ACTSC 208; (2013) 8 ACTLR 150Opbroek bhnf Crittall v Australian Capital Territory [2016] ACTSC 64; (2016) 11 ACTLR 171

Parties: Mackenzie Bennett bhnf Ian Bennett (Plaintiff)

Australian Capital Territory (Defendant)

George Malecky (Proposed Second Defendant)

Michael Rosier (Proposed Third Defendant)

Representation: CounselMr D Hirsch (Plaintiff)

Ms L Donohoe SC with Mr W B Buckland (Defendant)

Mr J Sheller (Proposed second and third defendants)

SolicitorsCanberra Legal Group (Plaintiff)

Australian Capital Territory Government Solicitor (Defendant)

Minter Ellison (Proposed Second and Third Defendants)

File Number: SC 117 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 allegations of negligence against the Australian Capital Territory; and

(c) expand on matters already 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.

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The existing pleading

4. The present statement of claim pleads the following matters. The plaintiff was born 12 April 2007 at 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.

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The proposed amended pleading

9. The proposed amended pleading renumbers the paragraphs of the pleading so that it more readily corresponds to a statement 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 rr 52, 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 amendments involves 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 in paragraphs 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 Hospital and “Therapy ACT”, introducing Dr Malecky and 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

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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 he recommended 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 Malecky and Dr Rosier’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:

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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 those additional 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

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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 that the 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.

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28. On 10 April 2013 the defendant received a personal injury claim notification form. The form identified 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?”, an annexure 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.

31. On 18 March 2014 the plaintiff served the originating claim and statement of claim on the defendant.

32. On 2 December 2014 the defendant filed its defence.

33. The Calvary Hospital proceedings were consolidated with the present proceedings on 15 December 2014 and the defendant joined as a fifth defendant in those proceedings. (I interpolate here that the date given by Mr Bayliss, 15 December 2014, appears to be inconsistent with the bench sheet, and a chronology of proceedings which was tendered shows the proceedings being “consolidated” on 11 September 2014. Notwithstanding the “consolidation”, no steps were taken to give effect to the consolidation other than having them listed at the same time.) The Calvary Hospital proceedings were subsequently resolved.

34. On 11 November 2015 the plaintiff served the report of Dr George Williams. On 29 February 2006 the plaintiff served reports of Professor Michael Ditchfield dated 16 February 2016 and Dr Bruce Currie dated 26 February 2016.

35. On 30 May 2015 the plaintiff served a supplementary report of Dr Williams dated 24 May 2016, the report of Ms Paula Tazzyman, a paediatric dietician, dated 18 May 2016 and the report of Ms Sarah Starr, a speech pathologist, dated 29 May 2016.

36. The present application was served on 1 July 2016.

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37. Insofar as the proposed amended statement of claim is concerned, Mr Bayliss was first notified of the fact that the plaintiff may have suffered brain damage during her admission to the Canberra Hospital in April 2007 by the supplementary report of Dr Williams dated 24 May 2016.

38. In his affidavit of 26 July 2016, Mr Bayliss deposes:

[17] I have a practice in cases regarding the birth and treatment of babies at the Canberra Hospital. Had there been any allegations regarding brain damage contained in the PICN or the Statement of Claim or indeed even in correspondence I would have perused the clinical notes, identified the relevant staff and if warranted, conferred with them and taken witness statements from them. I would also have taken steps to maintain contact with the relevant witnesses such as obtaining their private mobile telephone numbers and email addresses. I would have made enquiries about any future travel plans particularly if the witness was a registrar. Registrars are often at the Canberra Hospital for a short period before continuing their studies at other hospitals. Staff may also change their names if they get married or divorced. Some staff members may be using an Anglicised or transliterated version of their name whilst at Canberra Hospital but revert to their real name if they return to their home country.

[18] I would also have taken steps to preserve evidence in this matter such as rosters, original clinical notes and electronic records.

39. He gives evidence that he has been informed by a medico-legal coordinator at the Canberra Hospital that seven doctors who were employed at the Canberra Hospital neonatal intensive care unit between 13 and 19 April 2007 have since left the Canberra Hospital. He says that he has not had time to properly investigate how many doctors and nurses he would need to confer with and interview for the purposes of responding to these allegations. He says that he apprehends:

[21] ... that the defendant will suffer prejudice in its ability to locate the relevant witnesses, and to obtain evidence relevant to the new allegations, as many potential witnesses are no longer employed by the Canberra Hospital.

[22] It has been over 9 years since the date the injuries occurred. I believe that any witnesses who could have given evidence based on their recollection of their treatment of the plaintiff in relation to these issues may not be able to do so due to the effluxion of time.

40. In his affidavit of 27 July 2016 Mr Bayliss identifies that when the plaintiff had served the personal injury claim notification form on 10 April 2013, the plaintiff had already commenced proceedings but did not serve the originating claim and statement of claim until March 2014. He says that had the plaintiff complied with the Civil Law (Wrongs) Act 2002 (ACT) within three months of first consulting her solicitors then it would have been served by March 2010. Had he received it in March 2010 he would have commenced to investigate the matter at that point. He says that his investigations and statements would have covered the observations of the plaintiff and the circumstances of the treatment given to the plaintiff so as to cover the various decisions made to commence or not to commence components of the treatment provided to the plaintiff which are alleged to have caused the alleged brain damage. He says that the persons who treated the plaintiff may have had an independent recollection of the circumstances surrounding the plaintiff because her case was an unusual one. He says that this case is one in which members of the treating team need to give evidence beyond the issues contained in the Canberra Hospital notes because the notes do not explain whether other alternative treatment was considered or why such treatment was not given at that time. He also says that the impression given to the treating team from

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their examination and observation of the plaintiff would be of significance in assessing whether or not there has been a breach of duty. As a consequence he says that in this case the passage of time is of greater prejudice to the defendant than in a case where the treatment giving rise to the allegation of negligence is a mechanical issue and less dependent upon the subtleties of the observations were made of the plaintiff.

41. A procedural chronology, a chronology of treatment at Westmead Hospital and a schedule of correspondence was also tendered.

Explanation for making the amendments at this stage of the proceedings

42. The explanation for the making of the amendments at this stage of the proceedings lies essentially in the availability of new medical opinion. However, as the evidence described in the preceding section demonstrates, the availability of that new medical opinion occurs against a background of:

(a) a failure to obtain expert evidence at an early stage of the proceedings;

(b) a failure to give early notice of the claim to the Territory;

(c) the pursuit of an alternative claim against the Calvary Hospital and various doctors who treated the plaintiff’s mother prior to the plaintiff’s birth; and

(d) the understandable difficulties in the lives of the plaintiff and her parents which detracted from a single-minded focus upon litigation.

43. The proceedings were commenced in April 2013. At that time the plaintiff’s solicitors only had limited medical treatment records and no expert reports. The plaintiff was concerned to commence proceedings because of the impending expiry of a six-year period from her birth. Most relevant to the present application were other reports obtained by the plaintiff from:

(a) Dr George Williams, a paediatrician, dated 11 November 2015 and 24 May 2016;

(b) Dr Bruce Currie, a paediatric surgeon, dated 26 February 2016; and

(c) Sarah Starr, a speech pathologist, dated 29 May 2016.

44. It is the supplementary report of Dr Williams and the report of Ms Starr that are said to support the allegations of breach of duty against Drs Malecky and Rosier.

45. Dr Currie is a paediatric surgeon. He did not believe that the concept of a spontaneous perforation of the bowel was a term that should be used. He considered that in the present case the perforation of the bowel was caused by necrotising enterocolitis. He was of the opinion that if a laparotomy was performed on 17 or even on 18 April 2007 a perforation of the bowel may have been avoided, but not a bowel resection. He expressed the opinion that the poor upper-gut function has “nothing to do with her episode of NEC”.

46. Dr Williams relied upon correspondence between Drs Malecky and Rosier to reach the conclusion that an atretic fibrous segment in the splenic flexure measuring 4 to 5 cm removed on 25 October 2007 had not been identified or removed on 19 April 2007. The opinion presumes, for reasons which are not made clear, that its presence on 25 October 2007 indicated that it was there on 19 April 2007. He said that healing by atresia caused the plaintiff to have significant problems with milk tolerance and

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recovery from inflammatory bowel disease. He then went on to find that if the necrotic bowel had been removed then a gastrostomy would probably have been done and the prolonged tube feeding would have been avoided or required for a much shorter duration. He agreed with Dr Currie that prolonged nasogastric feeding did not cause anything other than delayed oral feeding. He expressed the view that nasogastric feeding was required because of the bowel and cardiac operations, but that this did not explain why the plaintiff was unable to suck, swallow and breathe properly after the cardiac operation done at nine weeks of age. He expressed the opinion that there was a lack of multidisciplinary management of her feeding, sucking and swallowing mechanisms for the first two to three years and this played a major role in the development of the problems with intellectual functioning, social skills, feeding, language communication and growth.

47. He expressed the opinion that “early treatment at the Canberra Hospital also probably caused neurological injury (brain damage)”. That explained her inability to coordinate, suck, swallow and breathe, even after the cardiac operation. It also explained the extent of the developmental and intellectual disabilities which are not typical of down syndrome. “MRI would confirm whether this brain damage exists.” He then summarised the position as follows:

Put simply, if the hospital had recognised the NEC risk and treated this properly then [the plaintiff] would not have suffered the neurological injury that I think prevented her from learning to feed properly. Even though she needed tube feeding because of the bowel operation on 19/4/2007 and the cardiac operation on 15/6/2007, she would have been able to learn to feed orally if not for the neurological injury.

48. Later in his report when addressing whether or not the insertion of a catheter through the umbilicus was relevant to the necrotising enterocolitis he said:

Further, the catheterisation was performed through an infected umbilicus. Seeding of infected emboli is serious in the presence of a complete AV canal defect. In [the plaintiff’s] case she has a central hole and the right and left circulation freely mix. Embolization to the brain is direct and immediate and apart from its effect on NEC could have added to the brain damage that I believe was caused by hypoxia and ischaemia.

49. He later said more about why the plaintiff could not suck until after heart surgery and why, even then, she could suck but not swallow:

I believe she had a central nervous system injury. I believe that the direct causes of this were hypoxaemia, ischaemia, hyperbilirubinaemia … hypoglycaemia, metabolic acidosis after hypotension, and cytokine from bacterial release namely tumour necrosis factor a (TNFa) and interleukin (IL) 1B and exogenous lipopolysaccharide (LPS).

The ability to suck, swallow and breathe is a reflex that is innate and does not require consciousness. This is a physiological reflex that is present at birth and even in children with Down syndrome … In [the plaintiff’s] case first and second order regulation was affected by the brain insult.

It is true that babies with AV canal defects and no brain injury often require tube feeding because they do not have the strength to suck and therefore to feed normally. That is one of the reasons repair of AV canal defects is usually done in the first week. That was not possible in [the plaintiff’s] case because she developed NEC which, because it was not properly treated, led to perforation of the bowel and Dr Malecky’s operation on 19/4/2007 and its consequences.

After the repair of the AV canal defect at 9 weeks [the plaintiff] had the strength to suck but still could not coordinate suck, swallow and breathe. Her inability to feed properly within a short time after the heart operation was due, I think, to neurological injury suffered in the first week with the NEC when she suffered the complications listed above.

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50. Later in his report he said:

I believe her delay in language and communication is in part related to her Down syndrome and would have probably occurred in any event. This is based on the literature and my own experience. However her serious delay in intellectual functioning, social skills, feeding, language, communication and growth were caused by her central nervous system insult and made worse by the failure to properly manage her feeding problem after the cardiac operation on 15/6/2007.

51. At the conclusion of his report he recommended:

A MRI of the brain to assess the degree of damage. We have good data of the variability of brain structure in healthy children with Down syndrome. I expect the MRI should show brain damage of the kind seen in postnatal hypoxic insult.

52. The defendant criticises this opinion because the reference to the brain damage being confirmed by an MRI suggests that Dr Williams was uncertain as to whether or not that existed.

53. The report of Ms Starr was directed to the plaintiff’s present oral swallowing and communication skills and her current and future speech pathology needs. Relevant to the present application, within that report Ms Starr states that the reports of Dr Rosier, various speech pathologists and employees of Therapy ACT and other medical specialists indicated that the plaintiff had the following feeding difficulties as an infant:

(a) no rooting reflex;

(b) poor attachment/poor lip seal on the teat;

(c) poorly coordinated suck-swallow breathe;

(d) poor sucking;

(e) hypersensitive gag;

(f) biting on the teat;

(g) chomping on the teat.

54. She also identified an early and persisting feeding problem as including fatigue during feeding.

55. In relation to each of these identified difficulties she said that they:

... are often indicative of neurological dysfunction and often occurred following hypoxia in the neonatal period … This may indicate that due to cyanosis, desaturation, breathing issues and cardiac failure in the first week of life whilst in the care of Canberra Hospital, [the plaintiff] may have incurred hypoxia and consequent brain damage.

56. Later in the report she identifies “significant concerns regarding the service provision and advice that was provided by the Feeding Clinic”. She expresses the opinion that prolonged nasogastric tube feeding is not supported by the literature and that if tube feeding is to be longer-term then a gastrostomy tube should be considered. If oral feeding is not possible or not carried out in the first four months of life then the infant will not learn to suck and swallow normally and skills can regress. If infants are not exposed to solid foods for chewing during the period from six to 15 months of age then they will have significant difficulty learning to orally prepare solid food.

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57. At the conclusion of her report she states:

... Most children with Down syndrome with appropriate oral feeding experiences would have mastered a range of solid food textures by 2-3 years even when they present with an early tongue thrust. [The plaintiff] is 9 years and she presents with severely impaired and delayed feeding skills. I believe her feeding impairment reflects her prolonged nasogastric tube feeding and consequent feeding refusal, delayed introduction of solid foods after the critical period (i.e. 6-15 months). I also believe her early intervention at The Canberra Hospital, Feeding Clinic and Therapy ACT was not appropriate in the choice of feeding equipment, food and liquid consistencies, feeding techniques and frequency of intervention.

How to deal with the limitation question?

58. The defendant contended that the relevant limitation period has expired and hence an amendment incorporating a new cause of action could only be made pursuant to r 503(4) of the CPR. The defendant then contended that some of the amendments do not arise out of substantially the same facts as those already pleaded and hence are outside the scope of that rule. The issue that arises from these submissions is whether s 30B of the Limitation Act 1985 (ACT) operates so that any new cause of action is statute barred.

Section 30B

59. Section 30B provides:

30B Special provision in relation to children—claims relating to health services

(1) This section applies if—

(a) a child (the plaintiff) suffers personal injury that gives rise to a claim for damages; and

(b) the claim relates to the provision of a health service.

(2) A cause of action for damages in relation to the claim is not maintainable if brought 6 years or more after the day the accident giving rise to the injury happened.

(3) However, if the injury is or includes a disease or disorder, the cause of action is not maintainable if brought after whichever of the following periods ends first:

(a) 6 years after the day the plaintiff (or the plaintiff’s parent or guardian) first knows or ought reasonably to have first known—

(i) that the plaintiff has suffered an injury that is or includes a disease or disorder; or

(ii) that the injury is related to someone else’s act or omission;

(b) 12 years after the day the accident giving rise to the injury happened.

Note The period mentioned in s (3) can be extended under s 36 but the period mentioned in s (2) cannot be extended under that section (see s 36 (6)).

(4) In considering whether or not the period mentioned in subsection (3) should be extended under section 36, the court must have regard to the opinion of a medical expert (or experts) on the question of when the plaintiff (or the plaintiff’s parent or guardian) first knew, or ought reasonably to have first known—

(a) that the plaintiff had suffered the injury; or

(b) that the injury is related to someone else’s act or omission.

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(5) In this section:

health service—see the Human Rights Commission Act 2005, section 7(1) and (3)(a).

60. The debates in the Legislative Assembly explaining the genesis of this provision are referred to in Opbroek bhnf Crittall v Australian Capital Territory [2016] ACTSC 64 at [44]-[46]; (2016) 11 ACTLR 171.

61. The critical distinction for present purposes is between a cause of action which is covered by subsection (2) and one which is covered by subsection (3). That is because if subsection (2) applies then, as the note to subsection (3) makes clear, no extension of time is available under s 36: see s 36(6). However, if subsection (3) applies then an extension is available.

62. The distinction between subsections (2) and (3) turns on whether the injury:

(a) is not, and does not include, a disease or disorder; or

(b) is, or includes, a disease or disorder.

63. The nature of the distinction depends upon the respective meanings of “injury”, “disease” and “disorder”.

Injury

64. Two points can be made about the term “injury” where it is used in those sections. First, having regard to the reference to “personal injury” in subsection (1) it is clear that the references to injury in subsections (2) and (3) are to “personal injury”. That is a term defined in the Dictionary to the Act as including “any disease and any impairment of the physical or mental condition of a person”. This definition introduces the concept of an “impairment of the physical or mental condition of a person”. The relationship between that concept and the concept of a “disease” or “disorder” is not identified or obvious.

65. Second, once there is an accident not including a disease or disorder it is not clear whether:

(a) only subsection (2) may apply; or

(b) subsection (2) may apply in relation to the accident (not including disease or disorder), but that if a disease or disorder follows the accident and it is subsequently sued upon, then subsection (3) may be relied upon notwithstanding that there was a clearly an accident as the genesis for the problem.

66. The terms of subsection (1), however, indicate the injury in subsections (2) and (3) is the injury “that gives rise to a claim for damages”. Thus when considering the operation of those subsections, it is the injury that gives rise to the relevant claim that is significant. That injury may be distinct from other “injuries” suffered at the same time or arising out of the same series of events.

Disease or disorder

67. While disease has a confined meaning, the term disorder is potentially very broad. Reading the words disease and disorder together, and allowing the word “disorder” to have its meaning influenced by the word “disease”, would confine the term disorder to

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some form of systemic disorder not amounting to a disease, most likely because it was not progressive. However, giving it its natural, broad meaning would allow it to occupy a large subset of the meaning of injury.

Accident

68. The word “accident” is not defined in the Limitation Act. The section appears to contemplate that personal injury giving rise to a claim for damages that relates to the provision of a health service can only arise from an “accident”. That conclusion arises from the terms of subsection (2) which refer to “the accident giving rise to the injury” and the reference in subsection (3)(b) to the same phrase “accident giving rise to the injury” in the context of an injury which is or includes a disease or disorder. Subsection (3)(a) does not include any express reference to an “accident”. Its reference to the injury relating to “someone else’s act or omission” appears to contemplate that the concept of an “accident” includes the consequences of an “omission” and probably the “omission” itself.

69. However, as this case illustrates, for the purposes of a medical negligence claim there may be a number of “accidents” (or, to use more common language, acts or omissions) which give rise to one or more injuries/diseases/disorders. The section does not expressly require the limitation period to run from the first of a number of injuries/diseases/disorders so that there is the potential for a variety of different limitation periods to arise in relation to a single collection of circumstances.

Six years from when?

70. Subsection (3) provides a limitation period of six years from two alternative points in time based upon the knowledge of the plaintiff or the plaintiff’s parent or guardian. The first is the date of knowledge that the plaintiff “has suffered an injury that is or includes a disease or disorder”. The second is knowledge that the injury “is related to someone else’s act or omission”. These two states of knowledge are alternatives as they are connected by the word “or”. It means that in relation to a known injury (being an injury referred to in the chapeau to the subsection that includes a “disease or disorder”) there must be knowledge either that it “is or includes a disease or disorder” or that it “is related to someone else’s act or omission”. In other words time starts running if it is known that the injury includes a disease or disorder (even if it is not known whether the injury relates to someone else’s act or omission) or if it is known that the injury is related to someone else’s act or omission (but it is not known that the injury is or includes a disease or disorder).

This case

71. Depending on the interpretation given to s 30B, this case potentially involves multiple “accidents” and “injuries” including “injuries that involve a “disease or disorder”. The defendant and the proposed defendants contend that the plaintiff’s proposed claim is statute barred. They do so in order to resist the amendment by the plaintiff to include additional claims. If they are correct then:

(a) in relation to the defendant, the path by which the plaintiff can achieve amendment of the claim becomes a narrower one, reliant upon the more confined provisions of r 503(4); and

(b) in relation to the proposed defendants, the proceedings will be statute barred.

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72. However, the defendant’s and proposed defendants’ submissions are dependent upon the law being both clear and inflexible. If it is unclear then it is unlikely to be appropriate to resolve that lack of clarity when all of the facts are not known. If it is not inflexible then it cannot be said that a limitation defence will be fatal to the proposed new claim.

73. So far as clarity is concerned, in order for the defendant and the proposed defendants to succeed it must be clear that subsection (2) applies and subsection (3) does not apply. That is because if subsection (3) applies then, even if the time defined by paragraph (3)(a) has expired, it is able to be extended under s 36 and hence is not an absolute bar to the claim and not an absolute bar to the making of the amendment.

74. Notwithstanding the defendant’s carefully articulated submissions about the operation of s 30B, it cannot be said that the law is clear as to which of subsections (2) or (3) applies. That is because in order for subsection (2) to apply the injury must be an injury that is not or does not include a “disease or disorder”. It cannot be said with certainty at this stage of the proceedings that necrotising enterocolitis, brain damage or the various consequences proposed to be alleged to arise from the plaintiff’s feeding problems are, as a matter of law, injuries that are not or do not include a “disease or disorder”. I do not consider it appropriate on an application such as this, where the facts have not been finally found, to attempt to resolve contentious and difficult questions of law concerning the meaning of terms used in s 30B or the operation of the section as a whole.

75. If it is not clear that only s 30B(2) applies, then it cannot be said that the law is inflexible because if s 30B(3) applies there is the potential for an extension of time to be granted under s 36.

76. If the defendant cannot establish that the claim is prima facie statute barred then it cannot establish that the amendment would be futile or that r 503 of the CPR is engaged.

77. In previous decisions I have sought to avoid the necessity to resolve how r 503 operates where it is not clear whether a limitation period current at the date of commencement of the proceedings has subsequently expired by deciding the matter on the basis most favourable to the defendant, namely, on the basis that the limitation period had expired: see Naidu v Fergusson [2013] ACTSC 208 at [50]; Kenjar v Australian Capital Territory [2014] ACTSC 69 at [44].

78. The assumption upon which r 503 is based appears to be that whether or not a limitation period has expired following the commencement of proceedings will be readily apparent. In many cases it will, indeed, be obvious. However, there are a significant number of cases in which it cannot readily be determined at an interlocutory stage whether or not a limitation period has expired. One example of this is where a limitation period has been pleaded but a reply alleging deliberate concealment under s 33 of the Limitation Act has been pleaded. Another situation will be where the operation of the particular provision that gives rise to the relevant limitation period, such as s 30B, cannot readily be determined at the interlocutory stage.

79. Where, at an interlocutory stage, the limitation position cannot be finally determined, how does r 503 operate?

80. Assume a simple case where there are two possible dates for the expiry of a limitation period, one occurring after commencement but prior to the application to amend and

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the other occurring at some date in the future after the application to amend. The defendant contends for the first, the plaintiff contends for the second. If the defendant is ultimately correct, then giving leave to amend which relates back to a date prior to the date contended for by the defendant will have destroyed the defendant’s limitation defence by a procedural ruling when the relevant facts have not been finally determined. If, on the other hand, the plaintiff is correct then the relation back of any amendment will not have any effect because the original and amended claim were made within the limitation period. One way of resolving this simple situation would be to order pursuant to r 514(4) that the amendment take effect on the day of the making (or granting of) the application for leave to amend. That would preserve the position of the defendant in the event that it is ultimately correct. However, by adopting that approach, the plaintiff loses the opportunity to achieve an amendment which relates back to the commencement of proceedings by reason of the operation of rr 503 and 514(3).

81. Therefore, in circumstances where the operation of the limitation period remains, for legal or practical reasons, uncertain at the point where an amendment application needs to be decided, the approach that would appear to protect the position of both sides of the record would be to:

(a) First decide whether or not the amendment could be permitted under r 503(4); and,

(b) Second, if it could not be permitted under that section, then to decide, if it was otherwise appropriate to grant leave to make the amendment, to make the amendment but order that the amendment only take effect from the date of the application to grant leave (or some other date which preserves the defendant’s limitation argument). Such an order appears to be contemplated by r 514(4).

82. There are at least two criticisms that can be made of such an approach. First, the language of r 503 provides that it applies if a relevant limitation period current at the date the proceeding was started has ended. The terms of the rule assume that the issue has been or can be determined and that it does not remain uncertain. It does not appear to contemplate a contingent ruling. Second, the two-step process contemplated is cumbersome for a procedural ruling and inevitably requires consideration of the operation of r 503(4) and the uncertainties of the phrase “arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed”. Having said that, these are difficulties which are manageable ones and adopting the approach that I have indicated does not do too much violence to the terms of the Act or the language of the rules.

83. Therefore, the position in the present case is that:

(a) the defendant contends that the limitation period has expired after the commencement of proceedings and prior to the present application;

(b) the plaintiff contends that the limitation period has not yet expired;

(c) it is not appropriate to attempt to determine that issue at the present stage of the proceedings except to identify that the plaintiff’s position is arguable;

(d) the questions are:

(i) is it appropriate to grant leave to make the amendment under r 503(4)?

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(ii) If not, is it appropriate to give leave to make the amendment in a manner that protects the defendant’s limitation argument?

Should the amendments be permitted?

84. Adopting the approach that I have outlined above at [81], I will address, in relation to each of the categories of amendments, whether or not the amendment will be permitted either by reference to r 503 or subject to the amendment only commencing from the date of the application for leave to amend.

Brain damage

85. These amendments are described at [11] above.

86. The plaintiff submitted that the amendments relating to brain damage do not involve a new cause of action. If that is correct then no limitation issue arises because the proceedings on the cause of action are already on foot. The plaintiff submitted that no new cause of action arose because the allegation of brain damage is, in substance, an allegation of additional damage arising out of the breaches of duty as currently alleged (or as rearticulated in amendments to which no objection is taken).

87. The defendant, on the other hand, contended that the allegations relating to brain damage (and the other new allegations) were “a whole new set of ideas” and hence new causes of action. That picks up the language quoted by Ryan J in Golski v Kirk [1987] FCA 200; (1987) 14 FCR 143 at 157, 159 (Golski) where his Honour referred to the decision of Holroyd Pearce LJ in Dornan v JW Ellis & Co Ltd [1962] 1 QB 583 at 591, 592.

88. As the differing rationales provided by the judges in Golski and the survey of the authorities by Refshauge J in Meredith v Commonwealth [2009] ACTSC 168 at [14]-[23] demonstrate, what constitutes a new cause of action as opposed to a variation, particularisation or expansion of an existing cause of action can be a question of difficulty. The decision of the Wheeler J in Morgan v Banning (1999) 20 WAR 474 at 480-487 provides a useful discussion of what constitutes a new cause of action.

89. In my view, the plaintiff’s submission is correct. Although the consequences of including brain damage as one of the pleaded elements of damage may have dramatic consequences, that, of itself, is not sufficient to demonstrate that it involves a new cause of action. In substance the duty and breach of duty pleaded remain the same in the amended pleading. The only change of substance is to plead an additional category of damage. Put in oversimplified terms, instead of alleging that the low oxygen saturations led to infection and necrosis of the bowel it is proposed to allege that it led to both infection and necrosis of the bowel and, either directly or indirectly, brain damage. They can be seen by the terms of the proposed paragraph 72(b), which provides that brain damage is a particular of damages. The fact that paragraphs 45, 46 and 47 contain additional allegations of fact does not have the effect of converting a new particular of damage into a new cause of action as those paragraphs plead facts relevant to damage and causation.

90. Because the amendment does not involve a new cause of action it is not caught by the terms of r 503 (not being an application to “make an amendment mentioned in this rule”). The question of granting leave to amend must therefore be determined under r 502.

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91. The defendant contended that:

(a) the explanation for the delay in making the amendment was inadequate;

(b) the evidence of Dr Williams provided an insufficient basis for the allegation;

(c) there is prejudice presumed by reason of the delay in making the amendment and actual prejudice by reason of the delays in the defendant making its investigations relevant to those facts.

92. Making the amendment is clearly driven by the availability of the expert opinion of Dr Williams. However, it has taken a very long time for the plaintiff to get that opinion and hence make her claim. The evidence does not disclose a methodical or disciplined approach to the early investigation of the potential for or nature of a claim relating to the treatment of the plaintiff. Rather it has been pursued with variable degrees of focus and followed different case theories at different times. While this may be understandable having regard to the circumstances of the plaintiff and her parents it does not provide a good explanation so far as the Court is concerned for making the amendment now.

93. I am satisfied that having regard to the report of Dr Williams and Ms Starr, there is a reasonable basis for the making of the allegations in relation to brain damage. It is not, in my view, appropriate to attempt a detailed analysis of the opinions that those experts express upon an application such as this.

94. So far as prejudice is concerned, I accept that there is likely to be a good set of relevant clinical notes. It is often difficult to assess the subtleties of what is lost as a result of a delay in making an allegation. I accept that as a result of the delay in the making of the allegation the defendant will have suffered some prejudice by reason of the fading of memory of those involved. Matters of impression and judgment as to how the plaintiff was managed may be significant in determining whether or not the treatment was in breach of the defendant’s duty. However, the extent of that prejudice should not be overstated. Given that the allegations of breach remained substantially the same, the most significant question is likely to involve determining whether the plaintiff suffers from brain damage and, if so, whether that was caused in the period from 13 April 2007 until 19 April 2007.

95. While the application is made after the proceedings have been on foot for a very long time, the stage the proceedings are up to is not such as to mean that there is significant procedural prejudice to the defendant. The principles articulated in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, while relevant, do not indicate that the application should be refused. The amendments do not involve a new cause of action and hence will not have the effect of defeating any limitation defence that is otherwise available. The amendments raise allegations which, if made out, may be of great significance to the plaintiff. In the circumstances, although, because of the delay in bringing the application and potential prejudice to the defendant, I consider the matter to be finely balanced, I consider it appropriate to grant leave to the plaintiff to include the allegations relating to brain damage.

96. Had it been the case that the amendments raise a new cause of action then it would clearly have been a cause of action arising out of substantially the same facts as the earlier cause of action. It would therefore have been open to make the amendment

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under r 503(4). I would have permitted the amendment, but on a basis that had the amendment take effect from the date of the application for leave to amend and hence left open the defendant’s limitation defence. That would have been because if the limitation period had not in fact expired then the prejudice to the defendant arising from the delay would be a prejudice which the law imposes upon the defendant. If, on the other hand, the limitation period had expired then the starting point would have been that the defendant was free of a new cause of action. Having regard to the factors referred to above, I would have considered it appropriate to preserve the defendant’s limitation defence in a manner that I have indicated.

Introductory paragraphs

97. These are described at [13] above.

98. Having regard to my conclusion in relation to the management of the plaintiff’s feeding difficulties, I consider that the amendment to insert paragraph 2 should be permitted.

99. Having regard to my decision in relation to the joinder of Drs Malecky and Rosier (see [113] below), the amendment to include paragraphs 3 and 4 should be permitted.

Failure to detect or remove atretic bowel segment

100. This amendment is described at [14] above.

101. I would allow the amendment to paragraph 43 because the additional allegation of negligence is not objected to. To the extent that involves a new cause of action, it clearly arises out of substantially the same facts as are already pleaded and any prejudice to the defendant does not make it inappropriate to grant leave to make the amendment. The defendant’s submission appeared to be put on the basis that the expert report of Dr Williams did not provide an adequate factual basis for the conclusion that because the atretic bowel segment was present in October 2007 it had also been present, but not detected or removed, in April 2007. While I accept that this is a matter which is not explained by Dr Williams’ report, it is clear from the terms of the report that Dr Williams holds the opinion that it was. That, in my view, is sufficient to provide a basis for the allegation in the pleading.

Management of feeding difficulties

102. These amendments are described at [15]-[20] above.

103. It is clear that because the earliest identified date here is July 2007, the allegations of negligence in relation to the management of the plaintiff’s feeding problems arose from July 2007. It is for this reason the defendant points to there being a temporal disconnect between the allegations pleaded and the allegations sought to be pleaded in relation to the management of feeding problems. That is because the plaintiff was transferred to Westmead Hospital on 2 June 2007 and only returned to the Canberra Hospital on 29 June 2007. It is because of this temporal disconnect that the defendant submitted that the new claims against it, Drs Malecky and Rosier do not arise out of substantially the same facts as the original claim.

104. The plaintiff contended that the difficulties from which she suffered arose as a consequence of the need for tube feeding which was caused by the initial management of her condition, including brain damage and the failure to extract the 4 to 5 cm piece of necrotic bowel. Those events led to the need for tube feeding and its longer term

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consequences. However, in the event that she is unsuccessful in the claim (for whatever reason) she still wishes to assert that the management of the tube feeding was inadequate for the reasons pleaded. Thus, the fact of long-term tube feeding, and any damages or disabilities that have arisen from it, would need to be traversed in any event without the addition of any new cause of action. She therefore submitted that the new cause of action, while focused upon the management of the tube feeding, arises out of substantially the same facts because those facts would need to be traversed in any event for the purposes of the existing claim or for the purposes of the claim as amended by those amendments which are not objected to.

105. These are matters which might have been, but were not, particularised in the original statement of claim. There are three ways in which this issue might be approached:

(a) First, having regard to the limited facts pleaded in the original same of claim, it might be characterised as not arising out of substantially the same facts as an existing cause of action. That is because no facts were pleaded relating to feeding difficulties even though theoretically they might have been encompassed within the scope of further particulars of damage that were to be provided prior to hearing.

(b) Second, having regard to the likelihood that the evidentiary facts that would need to be covered as part of the existing claim would extend to the medical history of the plaintiff and her feeding difficulties after July 2007 it could be characterised as arising out of substantially the same facts as an existing cause of action;

(c) Third, looking only at the ultimate facts pleaded for the purposes of the existing cause of action, it could be characterised as arising out of those facts because, even though there was a temporal disconnect arising from the plaintiff’s treatment in Westmead Hospital in June 2007, the treatment after July 2007 was sufficiently connected to be said to arise out of substantially the same facts.

106. When considering whether or not a cause of action arises out of substantially the same facts as a cause of action for which relief has already been claimed, I do not think that it is conceptually possible to define the already pleaded cause of action as not extending beyond the first suffering of damage. While it is correct to say that the cause of action is at that point complete, having regard to the purpose of r 503(4)(b), it is not appropriate to terminate consideration of what constitutes the same or substantially the same facts immediately upon the existence of a completed cause of action. That does not mean that any new cause of action arising in the period following the already pleaded cause of action, which is in any way associated with the damage alleged to flow from the earlier cause of action, arises out of the same or substantially the same facts. As with many aspects of this provision it involves a question of degree. In the present case it is clear that the feeding problems were not merely matters incidentally arising subsequent to the earlier alleged negligence but were associated with the events pleaded as having occurred between April and June 2007.

107. In my view, the best approach involves accepting that within the scope of the existing pleading it would be open to the plaintiff to particularise the damage as damage arising from the treatment to the period 13-19 April 2007. That would be on the basis that it was treatment necessitated by the negligence in the first period and, to the extent that

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the management of the consequential feeding problems was negligent, it was damage able to be recovered pursuant to the principal in Kruschich. In those circumstances, the substantial similarity in the evidentiary facts which would have to be investigated allows it to be characterised as arising out of substantially the same facts: Brickfield Properties Ltd v Newton [1971] 3 All ER 328 at 336.

108. In those circumstances I am satisfied that the management of the plaintiff’s feeding problems arises out of substantially the same facts as a cause of action for which relief has already been claimed in the proceeding.

109. Because the amendments should in any event be permitted pursuant to r 503 it is not necessary to make an order that they take effect for the purposes of any limitation period only from the date upon which either the application was made or leave was granted.

The position of the doctors

110. The position of the doctors is simpler. Pursuant to r 242 an order joining a party to a proceeding takes effect on the date when the order is made or another date stated in the order. However, because of r 242(3), it is not possible to state another date if the inclusion of the person on that date would bring the start of the proceeding within a limitation period applying to the person. In short it is not possible to get around any limitation problem by a procedural order fixing the date of commencement of proceedings at an earlier date than the order joining the party.

111. Therefore, while counsel for the proposed defendants adopted the submissions made by the defendant, in order that an issue under the Limitation Act render the joinder of his clients futile, it would be necessary to establish that the limitation defence available to them was clear and inflexible. For the reasons which I have given above, the terms of s 30B do not give rise to a clear and inflexible rule. Therefore I cannot conclude that the existence of a limitation defence would render the joinder futile. Having regard to the terms of the report of Dr Williams, I am satisfied that there is an arguable claim against them relating to the management of the plaintiff’s feeding problems in the period following her return from the dates pleaded in the proposed statement of claim.

112. Counsel for the doctors also submitted that if the plaintiff was correct in relation to the operation of s 30B(3) then she had some additional time in which to consider whether or not to join the additional defendants and would benefit from taking the time to obtain and examine all of the relevant records in relation to the conduct of Drs Malecky and Rosier. He further submitted that if the damages relating to the management of the feeding difficulties were recoverable from the Territory in any event then there was no need to join his clients. Unsurprisingly, the plaintiff submitted that the relevant records had been examined and she was not attracted to the approach contended for by the doctors.

113. My conclusion is that it is appropriate to permit the plaintiff to join Drs Malecky and Rosier as defendants.

Conclusion

114. For the reasons I have given it is appropriate to grant leave to the plaintiff to amend her statement of claim in the manner proposed.

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115. In relation to costs, so far as the defendant is concerned it is appropriate that that the plaintiff pay the costs of the application and the costs thrown away by reason of the amendments. So far as Drs Malecky and Rosier are concerned the appropriate order is that the costs of the application be costs in the cause.

116. It is also appropriate that the relevant provisions of Practice Direction No 2 of 2014 apply to the proceedings.

Orders

117. The orders of the Court are:

1. George Malecky is joined as the second defendant in the proceedings.

2. Michael Rosier is joined as the third defendant in the proceedings.

3. The plaintiff has leave to file an amended originating claim and amended statement of claim in the form attached to the application in proceeding dated 1 July 2016.

4. The plaintiff is to pay the first defendant’s costs of the application and costs thrown away by reason of the amendment.

5. In relation to the costs of the plaintiff and second and third defendants on the application to join the second and third defendants, costs of that application are costs in the cause.

6. Paragraphs 17-22 and 26-48 of Practice Direction No 2 of 2014 apply to these proceedings.

7. The proceedings are listed for further directions on a date to be fixed by the Registrar.

I certify that the preceding one hundred and seventeen [117] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 8 September 2016

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