Costello v State of Queensland [2002] QDC 221

DISTRICT COURT OF QUEENSLAND CITATION: Costello v State of Queensland [2002] QDC 221 PARTIES: Alan Edward Costello Plaintiff -v- State of Queensland Defendant FILE NO/S: D 2692 of 2001 DIVISION: Civil Jurisdiction PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 28th August 2002 DELIVERED AT: Brisbane HEARING DATE: 7th August 2002 JUDGE: O’Sullivan DCJ ORDER: Application dismissed CATCHWORDS: Practice & Procedure – Summary Judgement for Defendant COUNSEL: Mr JW Lee (for Plaintiff) Mr Freeburn (for Defendant) SOLICITORS: GoodFellow & Scott (for Plaintiff) Hunt & Hunt (for Defendant Applicant) [1] This is an Application by the Defendant for Summary Judgment under r293 of the Uniform Civil Procedure Rules (UCPR) on the basis that the Plaintiff’s case has no prospects of success because it fails to adduce medical evidence in support of the allegations of negligence pleaded in the Statement of Claim filed 5 June 2001. [2] As a preliminary point, the Plaintiff submitted that a letter under Rule 444 should have been sent to the Plaintiff before such an application was made, citing Millhouse IAG Pty Ltd v Environautics Pty Ltd [2000] QDS 196. -- 1 of 10 -- 2 [3] Although an Application for Summary Judgment under r 293(2) is akin to an action to strike out pleadings (Campak Construction Pty Ltd v Ank Pty Ltd , unreported decision of Skoien J, District Court, 17/12/99) it is not an action that is caught by Rule 444 as Rule 443 provides that Rule 444 applies when the Application is either: a) an application for further and better particulars of the opposite party's pleading under rule 161; b) an application under chapter 10, part 1; c) an application under chapter 10, part 2; d) any other application relating to a failure to comply with an order or direction of the court. [4] I agree with the Defendant Applicant that Rule 444 does not apply to an Application under Rule 293. The Application for Summary Judgment [5] Rule 293 is as follows: 293.(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff. (2) If the court is satisfied— (a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and (b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the court considers appropriate [6] In Foodco Management Pty Ltd & Anor v Go My Travel Pty Ltd [2001] QSC 291 Wilson J decided that the rule was similar to r24.4 of the Civil Procedure Rules (UK) and applied Lord Woolf MR's interpretation of the UK equivalent, saying: In Swain v Hillman [2001] 1 All ER 91 at 92 Lord Woolf MR said of the UK rule - 'The words 'no real prospect of succeeding' do not need amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or...they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success.' And at 95: '[Pt24 of the CPR].. is not meant to dispense with the need of a trial where there are issues which should be investigated at the trial.' I respectfully apply his Lordship's observations to r 293 of the UCPR." [7] In the later case of McPhee v Zarb & Others [2002] QSC 004, Wilson J further clarified rules 292 & 293, confirming that a more robust approach was required to be consistent with the overriding purpose of the UCPR. Wilson J referred to both Foodco Management and Swain v Hillman in restating the test, saying: "The Court -- 2 of 10 -- 3 should give summary judgment if (according to whether it is an application by a plaintiff or one by a defendant) the prospects of defending the claim or succeeding on it are so slim as to be fanciful." [8] It is not the case, as Counsel for the Plaintiff submitted that the relevant test is that the case is “bound to fail”. [9] It is therefore necessary to explore the Plaintiff’s Statement of Claim to establish whether or not the prospects of prosecuting the Claim are so slim as to be fanciful. [10] The allegation of negligence in the Statement of Claim has been very narrowly pleaded. It alleges that the Defendant, The Royal Brisbane Hospital, failed to provide the Plaintiff with a proctocolectomy. The Plaintiff has not pleaded or particularised when this surgery ought to have been performed. The Plaintiff’s Chronology [11] In early 1996 the Plaintiff was diagnosed as suffering from ulcerative colitis after a long history of bowel problems. In April 1998 the Plaintiff attended the Bundaberg Hospital (it is unclear whether of his own volition or by referral) where colonoscopy confirmed the ulcerative colitis, describing it as “severe”. The condition was treated with oral hydrocortisone in addition to sulphasalazine and cortisone enemas. [12] In October 1998 the treating surgeon at Bundaberg Hospital corresponded with the Gastroenterology department at Royal Brisbane Hospital. A request was made for an appointment for the Plaintiff to attend the inflammatory bowel disease unit at RBH. Additionally, advice was sought as to the appropriate course of treatment, given Dr Nankivell’s assessment that ‘this man’s control is inadequate and his disease is significantly interfering with his life’ (Exhibit PKF11, Affidavit of Patricia Feeney, filed 24 July 2002). [13] That appointment at RBH took place on 25 November 1998. Dr Radford-Smith advised Dr Nankivell that the ‘underlying diagnosis is definitely one of ulcerative colitis’, and noted that further tests would be carried out in the new year, namely a sigmoidoscopy, anorectal manometry and endoanal ultrasound. -- 3 of 10 -- 4 [14] There is no evidence presently before me which clarifies whether or not those tests were carried out, although it is evident that the Plaintiff was reviewed by Dr Edwards in the Inflammatory Bowel Disease unit on 8th March 1999, who refers to a ‘recent sigmoidoscopy’. He notes that ‘it is very unusual for ulcerative colitis to present with this amount of abdominal pain’ and arranges further tests, namely an ileocolonoscopy and small bowel series (Exhibit PKF13, Affidavit of Patricia Feeney filed 24 July 2002). [15] There is no evidence presently before me of the Plaintiff’s history between 25 March 1999 and 6 December 1999. [16] The next available report is dated 15 December 1999 from Dr Radford-Smith at the Royal Brisbane Hospital, noting a relapse in the Plaintiff’s condition. In that report the Plaintiff’s referring Doctor, Dr Morrison, is advised that the Plaintiff will be reviewed by the RBH Inflammatory Bowel Disease unit in ‘2 months time and have him assessed … with a view to considering proctocolectomy and pouch formation in the near future’ (Exhibit PKF16, Affidavit of Patricia Feeney, filed 24 July 2002). [17] There is limited evidence presently before me of the Plaintiff’s case history between 16 December 1999 and May 2000. [18] The Plaintiff was admitted to the RBH between 28 January and 2 February 2000, for what was diagnosed as ‘complicated haemorrhoidal disease with anal fissure’. A haemorrhoidectomy was performed during that admission. [19] Progress Notes for that admission note that ‘in view of improvement we would aim for proctocolectomy and pouch in a few weeks, pending EUA results’ (Exhibit PKF17, Affidavit of Patricia Feeney filed 24 July 2002; my emphasis). [20] The Discharge Summary for that admission clearly shows that there was a planned readmission, and provides the recommendation that a ‘total proctocolectomy and pouch formation which would best done [sic] electively to allow Mr Costello’s colitis to settle’. The note to the GP requests the referring doctor to control the medication so that at readmission the steroid dose would be at an acceptable level -- 4 of 10 -- 5 (Exhibit PKF18, Affidavit of Patricia Feeney, filed 24 July 2002). No time frame is indicated for that planned readmission. [21] This Discharge Summary is open to a construction that it put the Plaintiff and, more importantly, the referring doctor on notice of the need for strict and continued observation, such that when the Plaintiff’s colitis had settled an appointment for the recommended elective surgery should have been made. There is no evidence presently before me that such continued observation occurred. [22] There is no evidence presently before me of the Plaintiff’s history between 3 February 2000 and 2 May 2000. [23] There is no evidence before me to indicate whether or not the Plaintiff had medical insurance such that the presently recommended elective surgery could have been undertaken privately, rather than the Plaintiff waiting on the elective surgery lists of the public hospitals. I have assumed that the Plaintiff did not have such insurance. [24] The precise date is unclear, but in May 2000 Dr Morrison refers the Plaintiff back to Bundaberg Hospital following another relapse (the first occurring on 15 December 1999). (Exhibit PKF19, Affidavit filed 24 July 2002). That letter indicated that the Plaintiff was awaiting surgery in Brisbane. Dr Morrison notes that ‘concurrently he has anal boils which have been present for the last 6 weeks or so since his last admission to Brisbane. They will not operate on him until these are cleared’. There is a handwritten interlineation, deleting the typed 6 weeks and inserting 3 months. [25] That referral letter also indicated that in 1999 the Plaintiff attempted suicide and was being treated for depression. I have no doubt that a reasonable inference would be open that there would be a relationship to the ulcerative colitis and it might be assumed that if surgery were available to correct the problem he would have taken action. [26] The Plaintiff was admitted to Bundaberg Hospital on 3 May 2000. He was treated with ‘bowel rest, potassium replacement and intravenous steroids’. Bundaberg Hospital conferred with his treating doctors at Royal Brisbane Hospital in relation to ongoing high-dose steroid treatment. Royal Brisbane Hospital ‘advised that they -- 5 of 10 -- 6 would consider this at his next appointment and advised against surgical treatment at this time’ (Exhibit PKF4, Affidavit of Patricia Feeney filed 24 July 2002). [27] There is no evidence presently before me of the Plaintiff’s history between 3 May 2000 and 27 June 2000. [28] The Plaintiff’s condition deteriorated from that time forward. On 27 June 2000 he was again admitted to Bundaberg Hospital, and again on 17 July 2000. [29] There is no evidence presently before me of the Plaintiff’s history between 27 June 2000 and 17 July 2000. It is apparent that sometime between these two dates the Plaintiff appears to have indicated a preference for the elective surgery to be conducted in Bundaberg as noted by Dr Hornsby. That sub-specialist surgery was only provided in public hospitals by Dr Stitz (Exhibit PKF4, Affidavit of Patricia Feeney, filed 24 July 2002). [30] The Plaintiff remained an outpatient at Bundaberg Hospital, although there is no evidence of his history between 17 July and 24 August 2000 presently before me. On 24 August 2000 Dr Nankivell advised him that the recommended elective surgery was no longer a viable option given the deterioration of his perianal area; a total proctocolectomy and a permanent ileostomy was required. This was conducted on 28 August 2000 at Bundaberg (Exhibit PKF4, Affidavit of Patricia Feeney, filed 24 July 2002). The Involvement of Royal Brisbane Hospital [31] Royal Brisbane Hospital became involved in this matter in October 1998, following a referral from Bundaberg Hospital to the Inflammatory Bowel Disease unit. That appointment occurred in November 1998. [32] RBH was regarded by Bundaberg Hospital as the Plaintiff’s ‘treating doctor’ (page 3, Exhibit PKF4, Affidavit of Patricia Feeney, filed 24 July 2002). An inference can be drawn from the evidence presently before me to suggest that the Plaintiff was under the supervision of RBH between November 1998 to May 2000, albeit through his own GP Dr Morrison, and through Bundaberg Hospital. -- 6 of 10 -- 7 [33] It may be that the Plaintiff’s case management ‘slipped through the cracks’ of the RBH’s patient care procedures. The RBH records presently before me clearly show an intention of continued follow up of the Plaintiff. There is mention of further tests, further appointments, and indeed a planned readmission for the surgical procedures now the subject of dispute across the various documents exhibited to the Affidavit of Patricia Feeney, filed 24 July 2002. Are the Plaintiff’s Prospects so slim as to be fanciful? [34] It was always anticipated that a total proctocolectomy be performed. The difference between this surgery and that proposed by RBH relates only to the pouch. The pouch proposed by RBH was an internal pouch, or more correctly an iIleoanal reservoir: a part of the small intestine is used to create an internal pouch to hold faeces. This pouch is attached to the anus. The muscle of the rectum is left in place, so the faeces in the pouch does not leak out of the anus. People who have this surgery are able to control their bowel movements. [35] The surgery actually performed by Bundaberg was a permanent ileostomy. This involves the removal of the colon and the rectum, the creation of an opening in the abdomen, and the attachment of the bottom of the small intestine to that opening, where faeces is automatically discharged into an external collection bag. [36] In correspondence between the parties the Plaintiff’s solicitor indicated an intention to amend the pleadings to ‘strengthen his case’ (PKF2, Affidavit of Patricia Feeney, filed by leave, 7 August 2002). No Amended Statement of Claim has been filed. [37] Counsel for the Plaintiff referred me to Cameron v Westpac Banking Corporation (unreported, Federal Court of Australia, Drummond J , delivered 28th June 1994) as authority for the proposition that dismissal of proceedings where no cause of action is disclosed will be granted only “where it is so obviously untenable that it cannot possibly succeed”. Whilst I accept that Cameron does advance that proposition it is not the best authority on two grounds: first, it concerned a civil action arising from a criminal proceedings; secondly, it was an Application to strike out pleadings (for example, under r171), not an Application for Summary Judgment (under rule 293). As such it is clearly distinguishable -- 7 of 10 -- 8 [38] Similarly, I have had regard to National Australia Bank v Hart [2002] QSC 051 to which Counsel for the Plaintiff referred. That was an Application for Summary Judgement for the Plaintiff under rule 292. I agree that it affirms the general principle of caution in respect to summary judgment, but it is not directly on point. [39] There is ample authority that the Court should approach Applications by the Defendant for Summary Judgment cautiously: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Piper Ellis P/L & Anor v Farmland P/L & Ors [2000] QSC 157; Brown v Australasian Correctional Management Pty Ltd & Ors [2000] QSC 419; Smit v Chan [2001] QSC 070; Coombes & Barei Pty Ltd v Lincolne Scott Australia Pty Ltd (unreported, Supreme Court, Full Court, SA, No S6045, 28 February 1997; Campak Construction Pty Ltd v Ank Pty Ltd, unreported decision of Skoien J, Queensland District Court, 17/12/99). [40] The essence of those cases is that a Plaintiff should not be prevented from advancing a case that might possibly succeed. In Brown v Australasian Correctional Management Pty Ltd & Ors [2000] QSC 419, an application by the fourth and sixth defendants for summary judgment against the plaintiff, it was argued that the defendants' application for summary judgment imposed an onus on a plaintiff to place before the court some evidence which might arguably lead to his success in his action to avoid having it struck out. Ambrose J commented that: ..in effect the applicants seek to use rule 293 for the purpose of striking out the plaintiff's action. It is clear that such an order should only be made in exceptional cases and in this respect I refer to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ. [41] In Shipard v Motor Accident Commission (1997) SASR 240, at 250 Bleby J said that ‘the obligation to be discharged by a defendant in summary judgment proceedings is a stringent one’. He went on to cite the Chief Justice’s comments in Coombes & Barei Pty Ltd v LIncolne Scott Australia Pty Ltd (unreported, Supreme Court, Full Court, SA, No S6045, 28 February 1997 (at p3). In that case it was held that: It is not sufficient that the court might think it is likely that at the end of the day the party who invokes (the rule) will succeed, or even that the court thinks success for that party is more than likely. The requirement of the rule is more demanding than that. The rule performs an important function, particularly these days where there -- 8 of 10 -- 9 is an emphasis upon efficiency in the conduct of litigation, in enabling the court to dispose promptly and economically of claims entirely lacking in merit. But at the same time the court must be careful not to dispose of claims in this way unless they are really lacking in merit. Bleby J concluded that ‘where the outcome may depend on nuances of fact and degree, it is inappropriate for proceedings to be determined in a summary fashion under this rule’. [42] The decision of Justice Mullins in Smit v Chan (supra) affirmed and followed Shipard. Smit concerned allegations of medical negligence not dissimilar to those presented in this case. It concerned an application for summary judgment by the second defendant. Her Honour’s reasons clearly show that the state of the evidence before her in that case was problematic. Her Honour noted that sympathy for the plight of the plaintiff ought not to override the legal principle applicable under r293 that cases should not be allowed to proceed if truly unsupported by evidence. [43] Counsel for the Defendant submitted that the Plaintiff’s own evidence (as reviewed above) supports the Defendant’s actions on the basis of the expert medical evidence provided by the report of Dr Hourigan (Exhibit PKF5 and PKF8, Affidavit of Patricia Feeney, filed 24 July 2002) to which I was expressly referred. [44] That report is based on an examination of the Plaintiff and on the reports of Dr Ken Hornsby (Exhibit PKF4, Affidavit Patricia Feeney, filed 24 July 2002) and Dr Morrison (Exhibit PKF3, Affidavit Patricia Feeney, filed 24 July 2002). Dr Hourigan specifically notes that ‘in the absence of reports from Townsville Base Hospital, Royal Brisbane Hospital … assumptions are made’, and further that ‘a full and careful examination of all hospital records would be required to arrive at an opinion’ (Exhibit PKF5, Affidavit of Patricia Feeney, filed 24 July 2002). [45] The Plaintiff provided additional materials to Dr Hourigan on 1st May 2002, requesting an urgent updated report. On 3rd May 2002 Dr Hourigan replied to specific questions raised by the Plaintiff’s solicitors. It is open to a reasonable inference that Dr Hourigan could not offer more than a cursory examination of some 350 pages of medical records in reply to the urgency asserted by the Plaintiff’s solicitors (Exhibit PKF8, Affidavit of Patricia Feeney, filed 24 July 2002). -- 9 of 10 -- 10 [46] As was noted in Smit, it is not an accumulation of opinion of medical practitioners which is decisive of cases of medical negligence. Rather, ‘it is for the courts to adjudicate on what is the appropriate standard of care, even though evidence of acceptable medical practice is a useful guide’ (supra, at para 26). [47] My review of the material and the chronology I have outlined satisfies me that the Plaintiff may have a cause of action. The pleadings may need to be amended and further evidence may need to be gathered. At this point I consider that it is premature to give Summary Judgement to the Defendant. [48] After careful reading I have reached the view that the Plaintiff’s prospects are not so slim as to be fanciful. The chronology and material indicate to me that the Defendant may have been negligent in ways not particularised and/or the Plaintiff may have a cause of action against parties other than the Defendant. I consider it appropriate to give the Plaintiff an opportunity to review the action. [49] Counsel for the Plaintiff submitted that the Plaintiff is at liberty to gather further evidence to support his claim prior to trial. I agree that this is so, although the UCPR do not permit the Plaintiff leaving this to trial and the Defendant is entitled to know the Plaintiff’s case and be able to obtain answering expert reports. [50] I make the following orders: • I dismiss the Defendant’s Application for Summary Judgment. • The Defendant’s costs of this Application for Summary Judgment are to be paid by the Plaintiff. -- 10 of 10 --