NDIS: Jurisdiction to review

ZKTN and National Disability Insurance Agency [2017] AATA 744 concerned an application for review of a plan, which did not include some supports that the applicant sought.

The decision focused on a technical point arising from the wording of an internal review. The Tribunal held that the wording of the decision was in fact a confirmation of the plan, such as to give the Tribunal jurisdiction to review it.

Genetic information + Patient confidentiality

The much anticipated decision in ABC v St George’s Healthcare NHS Trust & Ors [2017] EWCA Civ 336 saw the Court of Appeal (England & Wales) allow an appeal from an interlocutory decision which had struck out the claim by ABC on the basis that there was no reasonably arguable duty of care owed by the care team, requiring disclosure of genetic information to a third party (family member).

The claim arose in circumstances where the father of ABC was diagnosed with Huntington’s disease but refused his consent for doctors to inform ABC, his daughter. The care team resolved to adhere to his wishes of confidentiality, even though the daughter was later known to be pregnant.

Lord Justice Irwin wrote the judgment of the Court of Appeal, emphasising that he had reached no final conclusion on the merits, only on whether the strike-out of the case was appropriate on the ground that the case is unarguable and cannot succeed.

The Court held that the claim of ABC was arguable and should be remitted for trial. At [61] there was express discussion as to whether recognition of such a duty should be left to Parliament.

Lord Justice Irwin said at [62] – [63]:The ambit and content of the duty of care in such cases has long been a matter of common law, developed by judicial decision. If that were to cease to be so, the law would ossify in this area. It has not done so, as demonstrated by the leading authorities in the field, such as Sidaway and Bolitho have shown. This point was made with characteristic elegance by Lord Bingham in his dissenting judgment in D v East Berkshire Community Health NHS Trust[2005] UKHL 23:

“[50] … But the question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems to be swept up by the Convention. I prefer evolution.”

A similar point was made by Lord Kerr and Lord Reed, with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hodge agreed, in Montgomery v Lanarkshire Health Board (General Medical Council Intervening) [2015] 2 All ER 1031:

“[93] The first of these points has been addressed in para 85 above. In relation to the second, the guidance issued by the General Medical Council has long required a broadly similar approach. It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562, [1932] All ER Rep 1 was no doubt received in a similar way by the manufacturers of bottled drinks.”


Jury trials in medical negligence

Lawsen v Jensen [2017] TASSC 34 is an interlocutory decision of the Supreme Court of Tasmania, considering an application to dispense with a jury on the grounds that the trial would involve prolonged examination of documents. The claim to be heard was a wrongful birth claim based on failure to properly interpret antenatal imaging.

The Court allowed the application, saying at [14]:

In my view the plaintiff’s submissions do not satisfactorily answer the key proposition that the breach and causation issues in this action are complex and will involve a detailed analysis of divergent expert medical evidence contained in voluminous documents. I am satisfied that notwithstanding the plaintiff’s prima facie entitlement to a jury, the number of issues in respect of which there will be divergent expert views set out in documents which would go into evidence and the reliance by the medical experts on learned scientific papers, give the evidence a quality that is significantly outside that which can conveniently be considered by a jury. The reports, proofs and papers are documents that would require prolonged examination in the nature of a scientific investigation that the average juror could not be expected to apprehend and undertake, even with the most careful summing-up of the evidence and directions of law given by the trial judge.


Interpretation of medical malpractice civil liability insurance policy

AAI Limited t/as Vero Insurance v GEO Group Australia Pty Limited [2017] NSWCA 110 required the Court of Appeal to consider the interpretation of an insurance policy. The headnote summarises the outcome as follows:

The Court of Appeal, dismissing the appeal, held, per Payne JA (Macfarlan and Simpson JJA agreeing):

1.    The language of the coverage provision of the Policy, in the context of the other terms of that contract, favours the conclusion that the pleaded claim by Mr Mace against GEO, which pleading was repeated by GEO against Vero, was a claim “resulting from the conduct of the Healthcare Services”, as those terms are further defined in the Policy: at [55].

2.    An objective observer would conclude that the parties intended that the “conduct” of the Healthcare Services included an omission by GEO to provide Healthcare Services: at [56].

3.    The primary judge was correct to conclude that the insuring clause was broad enough to provide cover to GEO in circumstances where, by reason of a failure of GEO’s healthcare systems to identify Mr Mace as requiring assistance, he suffered loss or damage. This is because that omission, properly characterised, was a result of the conduct by GEO of Healthcare Services, namely the omission as part of the Healthcare Services GEO was otherwise providing to inmates at Parklea to identify Mr Mace’s risk of self-harm: at [64].

4.    The “conduct” of Healthcare Services extended to acts and omissions in identifying and assessing inmates for the purpose of determining which further health services and treatments were required: at [65]

5.    At the time of Mr Mace’s admission, GEO was engaged in providing Healthcare Services to inmates at Parklea and that the failure to assess Mr Mace was an omission in the course of provision of Healthcare Services to inmates. The claim resulted from the conduct of Healthcare Services: at [67].


Inquest into the deaths arising from the Lindt cafe siege: Medical issues

Now available online are the findings and recommendations of the State Coroner of New South Wales into the deaths during the Lindt Cafe siege of 2014.

Pages 11 – 41 of the report sets out the list of coronial conclusions and recommendations.

The detailed report includes focus on:

  • the role of a consultant psychiatrist, with recommendations as to the development of a policy and an expanded panel of experts;
  • the Australian Psychological Society Code of Ethics, with recommendations for consideration of expanded circumstances for disclosure of risks of harm to others; and
  • privacy legislation, with recommendations for consideration of disclosure of health records to security agencies.




Abuse, no limitation period & application for stay of proceedings

Although the alleged abuse did not arise in the context of medical treatment, Connellan v Murphy [2017] VSCA 116 is of interest as an appellate consideration of the effect of recent amendments by which there is no limitation period for sexual assault / abuse claims. The allegations related to a time when the defendant was aged 13 years, some 50 years earlier.

Against the background of the Victorian provisions (section 27 O – 27 R, Limitation of Actions Act 1958(Vic)) the Court of Appeal was called upon by the defendant / appellant to revisit the lower court’s refusal of a permanent stay of proceedings. Having reviewed the authorities, at [54] the Court of Appeal said that:

  • In order to justify the grant of a stay, a defendant bears a heavy onus.  A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication.
  • The categories of abuse of process are not closed.
  • In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial.
  • The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.

The Court of Appeal noted the elapse of time, the death of two key witnesses and the later demolition of the house where the events were said to have occurred. At [65] – [66] the Court concluded:

In the present case, and in the light of the specific facts of this case, we are of the view that it would be plainly unjust to permit the plaintiff’s proceeding to continue. The defendant cannot realistically be expected to defend a cause of action that is alleged to have accrued almost five decades ago in circumstances where so little is known about the surrounding circumstances and facts, and all of the principal witnesses who were adults at the time are now dead.  A trial of the plaintiff’s allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon…..While the onus borne by the defendant was a heavy one, in the exceptional circumstances of the specific facts in this case we are of the opinion that it has been discharged, and the defendant is thus entitled to a permanent stay of the plaintiff’s proceeding.

Resistance to inspection of subpoenaed documents & Costs

Boorman and Ors v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576 is an interlocutory decision in the context of a claim against a pharmaceuticals manufacturing company as described at [6]:

On various dates in the 1970s and 1980s each plaintiff underwent a radiographic procedure known as a myelogram to obtain images of the spine and parts of the nervous system. Each plaintiff alleges that for the purposes of this procedure he or she was given an injection into the spinal column of an oil based contrast medium manufactured by the defendant under the name Myodil. It is alleged that this fluid caused inflammation of a layer of the meningeal sheath around the spinal cord, leading to the formation of scar tissue and causing adhesion of nerve fibres in the spine. This is a condition known as adhesive arachnoiditis. It has resulted in the plaintiffs’ nerves clumping together and causing symptoms which have included severe pain in the lumbar spine and lower limbs.

The plaintiff had resisted inspection of subpoenaed documents (relevant to a limitation defence) but later consented, once the defendant had litigated the question of inspection. The court was required to determine whether the plaintiff was justified in resisting inspection and the costs orders to be made.

At [50] the court concluded that the plaintiffs were not justified in resisting production of the subpoenaed documents for inspection and that they must pay the defendant’s costs of and incidental to the notice of motion. The court further held at [54] that by the applicable standard of the reasonably competent solicitor it should have been evident to the solicitors that their clients had acted in the litigation inconsistently with maintaining privilege over, at least, the significant number of documents tendered by way of example and that the defendant’s notice of motion should not have been resisted. Accordingly the solicitors were ordered to pay the costs.


Funds management fees: Potential recovery

Jones v Warwick Total Security Service Pty Limited [2017] QDC 114 was a trial on the issue of the quantum of management fees of damages payable to the plaintiff, in the context of conflicting medical evidence on the prospect of the claimant’s recovery from a head injury with functional overlay. The court found at [53] that the evidence showed that the claimant would need financial management for at least 10 years but had a further life expectancy of 61 years.

Applying the principles in Malec v J C Hutton, the court discounted the life expectancy funds management sum by 33%.


Interrogatories in medical claim

El-Mouelhy v Reid [2017] NSWSC 623 required the court to determine a claimant’s application for leave to administer interrogatories in the context of a medical negligence claim.

Various interrogatories were permitted, including some going to the defendant’s training, surgical experience and conduct. Questions regarding the defendant’s registration and disciplinary findings were not allowed given that a subpoena could have been issued for relevant records.



Spinal surgery & monitoring

Hobson v Northern Sydney Local Health District [2017] NSWSC 589 was a decision today of Justice Harrison of the NSW Supreme Court. The published catchwords were:

NEGLIGENCE – medical negligence – where plaintiff with Noonan Syndrome rendered paraplegic in surgery to correct spinal deformity and associated respiratory difficulties – where plaintiff’s intraoperative condition deteriorated significantly – where operation halted but not before the plaintiff suffered a spinal stroke that led to paraplegia – whether operation should have been abandoned before this occurred – whether reasonable to continue with operation having regard to plaintiff’s pre-operative condition – whether operation should have been abandoned when spinal monitoring became ineffective following administration of vecuronium to assist ventilation.

During the course of surgery designed to address the effects of an inherited condition including severe lordoscoliosis, Mr Hobson sustained a hypotensive insult to his spinal cord that rendered him a paraplegic. Mr Hobson alleged in general terms that the operation ought to have been aborted earlier when it became apparent that his intraoperative condition was critical and quickly deteriorating. He alleged that he would not have sustained any injury at all if that course had been taken in a timely way.

The lengthy decision dealt with expert evidence in detail. The trial judge also considered arguments in relation to inherent risk (section 5I, Civil Liability Act 2002 (NSW)) and the peer opinion defence (section 5O, Civil Liability Act 2002 (NSW)). Neither were held to assist the defendants.

Judgment was entered for the plaintiff and damages were assessed.