Arnold v Bradshaw
[2001] WASCA 389
•12 DECEMBER 2001
ARNOLD -v- BRADSHAW [2001] WASCA 389
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 389 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1958/2001 | 24 AUGUST 2001 | |
| Coram: | WALLWORK J WHEELER J MILLER J | 12/12/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHILOMENA JULIA ARNOLD WAYNE WILLIAM BRADSHAW |
Catchwords: | Appeal Delay Prejudice Factors to be considered Turns on own facts |
Legislation: | Nil |
Case References: | Nil Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Jakovljevic v Doslov [2000] WASCA 131 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- WHEELER J
MILLER J
PHILOMENA JULIA ARNOLD
Applicant Ex Parte
AND
WAYNE WILLIAM BRADSHAW
Respondent
Catchwords:
Appeal - Delay - Prejudice - Factors to be considered - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr A J Castley
Respondent : Mr P D Quinlan
Solicitors:
Appellant : Bradford & Co
Respondent : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jakovljevic v Doslov [2000] WASCA 131
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Wheeler J and with her Honour's conclusions.
2 There is nothing I wish to add.
3 WHEELER J: This is an application for leave to appeal from a decision of Deane DCJ dismissing an appeal against the decision of a Registrar of the District Court striking out the plaintiff's claim for want of prosecution. It is helpful to outline briefly the chronology of events in the action. The following chronology is taken from the decision of Deane DCJ. It is not contended that there is any material error in it.
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Plaintiff applies for leave to issue a writ of summons and serve notice of the writ of summons out of the jurisdiction |
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(Page 5)
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(Page 6)
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4 As presently pleaded, the claim is to the effect that the defendant was negligent in performing a particular procedure by reason of his failure to warn of risks and complications associated with the procedure on the one hand, and his positive recommendation of the procedure on the other. What appears to have taken place is that the defendant performed a liposuction to both hips which is not the subject of any complaint. However, at the same time, he also performed what was called an "autologous fat transplant" from the hips to her breasts. It is alleged that as a result of this procedure she suffered breast infection, fat necrosis in both breasts and benign fibrocystic disease, and that as a result it was necessary for her to have a bilateral subcutaneous mastectomy in 1992. The negligence is said to consist in failing to advise the plaintiff of alternatives to the autologous fat transplant procedure and failing to advise her of the consequences of such a procedure which was said to be that when implanted in large quantities autologous fat "always causes fat necrosis, cysts and calcification". The negligence in recommending the procedure is said to be along the same lines.
5 It appears that the source of the pleadings is substantially a report prepared by Mr Fitzpatrick, plastic and reconstructive surgeon, in June 1992. In the course of the history which he gave in that report Mr Fitzpatrick advised that the plaintiff said that prior to the liposuction she had been well, with no problems relating to her breasts. He stated that the fat injection was not regarded as a conventional treatment, that it always led to problems, and that a general practitioner or doctor who carried it out was therefore not showing the standard of care or skill expected of him.
6 So far as her Honour's decision is concerned, the draft grounds of appeal are as follows: -
(Page 7)
"1. The learned Judge erred in finding that the Appellant (Plaintiff) was responsible for a period of inexcusable delay, when such a finding was not open or was against the weight of the evidence.
PARTICULARS
1.2 Having found that there had been a period of inordinate delay between late 1994 and 1999, the learned trial Judge found that there was a 'lack of cogent explanation' by the appellant (Plaintiff) for the delay when there was evidence that:
(a) the Appellant (Plaintiff) had applied to the Court to compel the respondent (Defendant) to produce a defence in November 1994;
(b) the Respondent (Defendant) had returned to the Maldives in December 1994;
(c) the appellant (Plaintiff) applied for legal aid in February 1995;
(d) the Appellant (Plaintiff) contacted the office of the Premier and the Minister for Health in February 1995;
(e) the Respondent (Defendant) was imprisoned for 3 years in early 1995 and fined a sum of $20,000.00;
(f) the appellant (Plaintiff) was advised by solicitors in November 1995 to defer further proceedings until more information was gained regarding the Respondent's (Defendant's) circumstances;
(g) the Respondent (Defendant) was banned from practising medicine in December 1996 and returned to the Maldives;
(Page 8)
(h) shortly after the Respondent (Defendant) returned to Perth and had his ban from practising medicine lifted in late 1998, the Appellant (Plaintiff) changed solicitors and instructed them to proceed, which evidence provided explanation for the delays in the prosecution of the Appellant's (Plaintiff's) case.
- 1.2 Having found that there was a period of inordinate delay on the part of the Appellant (Plaintiff) between late 1998 and February 2000, the learned trial Judge found that there was no explanation for the delay when there was evidence that:
(a) the Appellant (Plaintiff) transferred her file to new solicitors; and
(b) those solicitors made enquiries as to the state of the Appellant's (Plaintiff's) claim during this period, which evidence provided explanation for the delays in the prosecution of the Appellant's (Plaintiff's) case.
- 2. The learned trial Judge erred in law in finding that there was no acceptable argument that the Respondent (Defendant) had contributed to the delay.
PARTICULARS
2.1 The learned trial Judge misdirected herself that when considering the effect of the Respondent's (Defendant's) conduct, she ought to consider whether the Respondent (Defendant) had acted deliberately to frustrate the Appellant's (Plaintiff's) claim when such a consideration was irrelevant.
2.2 The learned trial Judge failed to consider the effect of the overall conduct of the Respondent (Defendant) in:
(Page 9)
- (a) repeatedly absenting himself from the jurisdiction; and
(b) spending periods of time in incarceration, which conduct provided explanation for the delays in the prosecution of the Appellant's (Plaintiff's ) case.
- 3. The learned trial Judge erred in law in finding that there was a substantial risk that it would not be possible to have a fair trial of the issues in this action, when it was not open or against the weight of the evidence to do so.
PARTICULARS
3.1 The learned trial Judge found that it could be inferred that the recollection of witnesses would be impaired due to the passage of time, when there was no evidence as to what witnesses may be required in the case apart from the Appellant (Plaintiff), the Respondent (Defendant) and the Respondent's (Defendant's) experts.
3.2 The learned trial Judge found that the Respondent (Defendant) is or will be precluded from investigating, in any detail, the issue of any pre-existing breast condition suffered by the Appellant (Plaintiff) when there was no evidence of any attempts by the Respondent (Defendant) to investigate this aspect of the claim.
3.3 The learned trial Judge found that the Respondent (Defendant) may be prejudiced in locating witnesses he may well wish to call at trial, when there was no evidence as to the witnesses required or the attempts to contact them.
3.4 The learned trial Judge found that there was a risk that evidence of experts could be tainted by more recent medical advances when there was no evidence on which to base such a finding.
(Page 11)
- 4. The learned trial Judge erred in law in finding that if there was prejudice to the Respondent (Defendant), it resulted from the Appellant's (Plaintiff's) conduct.
PARTICULARS
4.1 The learned trial Judge found that some crucial notes and materials had been destroyed or were no longer available, when this was in no way connected to the conduct of the Appellant (Plaintiff) and would have occurred in any event regardless of any delays in the prosecution of the Appellant's (Plaintiff's) action."
8 The only real explanation for the delay seems to lie in the circumstance that the plaintiff was advised by solicitors in November 1995 to defer further proceedings until more information was gained regarding the defendant's financial circumstances, it apparently being thought that there might not be sufficient funds to meet a judgment if the defendant were uninsured. The only evidence that any enquiries were in fact made comes from a letter dated 1 November 1995 written on behalf of the Hon Jim McGinty MLA and suggesting to the plaintiff's then solicitors a number of potential lines of enquiry. There is no evidence that these were pursued. There is also, in the materials before us, a letter from the plaintiff's solicitors to her in mid-1996 asking whether she had any further information concerning the defendant. This rather suggests an arrangement between the plaintiff and her solicitors that she would make
(Page 11)
- certain enquiries. What those enquiries might have been and whether they were made is not disclosed in the affidavits filed on behalf of the plaintiff.
9 It should also be noted that in May 1995, an offer of legal aid was made to the plaintiff although with conditions attached that she repay monies and that there be a $4,000 memorial registered against the title to her house. It was said at about that time by her solicitor in a letter to the Legal Aid Commission that the house was worth approximately $80,000. It was jointly owned with the plaintiff's husband who was suffering from Alzheimer's disease and the plaintiff declined the offer of aid on the basis that she did not wish to "place the little we had in our possession at risk". It is not clear whether the position of the plaintiff's husband was made known to the Legal Aid Commission. In any event, it does appear that the plaintiff was in a position to obtain funding for an action; such a course would not have been free from risk, but it is to be observed that litigation is never entirely free from risk.
10 The second period of delay is that between late 1998 and February 2000, it does seem that there is some explanation for this delay, in that the plaintiff's solicitors appear to have been enquiring into, inter alia, the whereabouts of the defendant, at that stage. It is not clear, again, precisely what enquiries were made to locate him or why it should have taken so long to do so. Certainly, it is difficult to regard the explanation that the solicitors "made enquiries as to the state of the plaintiff's claim" as providing a full and sufficient explanation for a delay of over 12 months.
11 In my view, the delay between late 1998 and February 2000, although significant, cannot be regarded as inordinate and wholly without excuse, but the delay between late 1994 and 1999 can be so characterised.
12 So far as ground two is concerned, it has two aspects. First, it is said that her Honour misdirected herself in considering whether the defendant had acted deliberately to frustrate the plaintiff's claim, such a consideration being irrelevant. I do not understand this submission. It is accepted that, as a matter of law, the defendant's conduct is a relevant consideration. The decision to strike out for want of prosecution is a discretionary one, taken in the interests of justice in all the circumstances of the case. A defendant who has deliberately acted so as to cause or increase delay is less likely to persuade the court to strike out a plaintiff's claim on the ground of delay. This does not mean, and her Honour did
(Page 13)
- not suggest, that a claim should only be struck out where such deliberate conduct can be demonstrated.
13 So far as the defendant's absence from the jurisdiction is concerned, this would be relevant only if his absences in some way contributed to the delay. As it appears that for the greater part of the relevant period the plaintiff knew of the defendant's whereabouts, this is simply an irrelevant matter. Similarly, there is no explanation of how the defendant's spending time in prison in this State could have caused relevant delays. The only relevance of the defendant's incarceration seems to have been that the plaintiff assumed – with what accuracy is not known – that because he was incarcerated it would not be worthwhile taking proceedings against him because he might be unable to satisfy judgment.
14 So far as grounds 3 and 4 are concerned, they essentially attack the entirety of her Honour's findings in relation to the question of prejudice. There is one respect in which I think that the grounds do point to an error; ground 3.4 refers to her Honour's observation that there was a risk that evidence of experts could be tainted by more recent medical advances. It is correct to observe, as the ground does, that there was no evidence upon which to base such a finding. It is the case that experts are commonly asked to consider practices which were engaged in some time previously, and to give opinions in relation to those practices, based upon the state of then existing knowledge and best practice. In many cases, they will of course have relevant literature to assist in that task. It may be that there is some risk that previous practices will be evaluated in the light of modern knowledge and modern understanding, but this risk exists whenever expert evidence is given as to the appropriateness of action taken in the past, and is not a risk peculiar to this case; nor is the risk caused by the plaintiff's delay, although there may be some slight degree of increased risk because of the length of time which has elapsed since the relevant procedure.
15 Leaving ground 3.4, aside the prejudice which her Honour found to exist was based upon a number of matters. First, her Honour took the view that there was a prejudice arising from possible impairment of witness' recollections, and in particular the recollection of the defendant, in relation to events which occurred in excess of 11 years ago. The defendant had sold his practice and did not retain relevant notes. It appears that, as a result of a complaint made to the Medical Board by the plaintiff, he did retain some notes relating to her. There are apparently
(Page 14)
- available three information sheets, which the plaintiff had collected from the defendant's surgery and had retained. This was not a case, therefore, where there was no written material upon which the defendant could rely. However, it nevertheless is to be expected that, where the central issue involves a discussion between plaintiff and the defendant 11 years previously, the defendant might be disadvantaged by the length of time which has elapsed; this is particularly so, since it is more likely that a patient, rather than a medical practitioner, will recall precise details of any conversation involving that particular patient.
16 Further, the defendant is apparently not in a position, due to the absence of any records retained by him to identify any other patients who underwent this procedure. The defendant sold his practice long ago; it appears that at the date of service of the writ in 1994 the purchaser had retained his records, but they have since been destroyed. In the light of Mr Fitzpatrick's observation that such a procedure "always" causes problems, it might be of assistance to the defendant if he were able to locate a sufficient number of former patients who had undergone the procedure and not experienced problems, to cast doubt upon that assertion.
17 Finally, it is to be noted that the plaintiff's general practitioner, Dr Gild, destroyed his notes relating to the plaintiff some years ago when his practice was computerised. To the extent that he retains some record of his treatment of the plaintiff, it appears that: in February 1987 she complained of a painful right breast but received a normal mammogram; in March 1987 she again complained of a painful right breast and an ultrasound indicated a cyst; and in February 1989 there is a reference to previous hormone replacement therapy causing lumps in her breast. There is no reference in those notes which are retained by the defendant, in or about May 1989. Had the notes of the general practitioner been available, there would appear to be an obvious line of enquiry when these brief references are contrasted with Mr Fitzpatrick's assertion that prior to the liposuction the plaintiff had had no problems relating to her breasts. It is not clear precisely when Dr Gild's notes were destroyed; his report of August 2000 said that this was done "some years ago" so that it may well be that the destruction occurred during the period of the plaintiff's lengthy delay. It is not pleaded in the defence that there was any relevant pre-existing breast condition, and the plaintiff submits that therefore there is no relevant prejudice. However, the argument appears to me to be circular. It is difficult to see how such a pleading could sensibly be made
if there is apparently no avenue of pursuing any enquiries about what pre-existing conditions may have existed.
18 In my view, there was considerable material before her Honour to justify the conclusion which she reached that there was real and serious potential prejudice to the defendant arising from the plaintiff's delay. I would further observe that a large portion of that prejudice appears to arise simply because the plaintiff failed to serve a statement of claim upon the defendant until March 2000, even though her application for filing and service of a defence was dismissed in 1994, on the basis that there was no statement of claim filed. The endorsement of claim which was issued in November 1992 and served in February 1994, simply claims for damages for "personal injuries and/or disfigurement" arising from the defendant's negligence "in providing medical treatment and/or services … between in or about November 1988 and in or about May 1989". There is no hint as to what the problem was with the treatment or what injuries the plaintiff suffered or when she suffered them. An appropriately detailed statement of claim would at least have given the defendant some knowledge of precisely what was alleged against him, and might have led to him making enquiries or taking other steps which may have reduced the prejudice which he now faces. It is not only the fact of the plaintiff's delay, but the fact that that delay began at a very early stage in the action, which appears to have contributed significantly to the prejudice arising in this case.
19 In relation to those grounds of appeal which complain that her Honour erred in relation to the question of whether there was an inordinate and inadequately explained delay, it appears to me that they are simply unarguable. So far as the question of prejudice is concerned, while the grounds are arguable, I am not persuaded that her Honour's findings in relation to those matters are attended with sufficient doubt to justify a grant of leave to appeal. I would therefore refuse leave.
20 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wheeler J. I agree with those reasons and I too would refuse leave to appeal.
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