Bligh (an Infant by His Next Friend Sally Bligh) v Minister for Health

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BLIGH (An infant by his next friend SALLY BLIGH) -v- MINISTER FOR HEALTH [2006] WADC 79

CORAM: O'BRIEN DCJ

HEARD: 19 MAY 2006

DELIVERED : 24 MAY 2006

FILE NO/S: CIVO 33 of 2006

BETWEEN: JEREMY BLIGH (An infant by his next friend SALLY BLIGH)
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Limitation Act 1935 s 47A - Application for leave to commence proceedings - Turns on own facts

Legislation:

Limitation Act 1935

Result:

Leave granted to plaintiff to commence proceedings pursuant to Limitation Act 1935 s 47A

Representation:

Counsel:

Plaintiff: Ms T J Laslett
Defendant: Mr S M Murphy

Solicitors:

Plaintiff: CLP Lawyers
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Black v City of Melbourne [1963] VR 34
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Carter v State Housing Commission No 1388 of 1995
Pitcher Products Pty Ltd v Country Roads Board (1964) VR 661
Posner v Roberts (1986) WAR 1
Quinlivan v Portland Harbour Trust (1963) VR 25
Ridgeway v Shire of Moora (1986) ATR ¶ 80 – 033
Smith & Ors v The Executive Director of the Department of Conservation and Land Management (1999) WASC 240
Stevens v Motor Vehicle Insurance Trust (1978) WAR 232

Case(s) also cited:

Hansan v Minister for Health [2002] WADC 193
Hughes v Minister for Health in his capacity as Board of East Pilbara Health Service [1999] WASCA 131
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Jacob Riely McLennan (by his next friend Yvonne Joyce McLennan) & Anor v McCallum & Anor [2003] WADC 93
Murray v Baxter (1914) 18 CLR 622
Nicholls v Minister for Health (1992) 8 SR (WA) 310
Reilly v Dimer (1988) 5 SR (WA) 76
Scott v Western Australia (1994) 11 WAR 382

O'BRIEN DCJ: By originating summons dated 16 March 2006 the plaintiff, Jeremy Bligh, seeks leave pursuant to the Rules of the Supreme Court s 47A of the Limitation Act 1935 ("the Act") to commence an action against the defendant for damages in respect of injuries suffered by him as a result of medical treatment and advice provided at Princess Margaret Hospital ("PMH") on or about 27 May 2000.
The plaintiff is an infant who was born on 16 February 1997. As required by O 70 r 2(1) the plaintiff is represented in the proceedings his next friend, who is his mother, Ms Sally Bligh.
Section 47A(1) of the Act provides that no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless:
(a)The prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based; and
(b)The action is commenced before the expiration of one year from the date on which the cause of action accrued.
Subsection 3(a) provides that notwithstanding the foregoing provisions, application may be made to the court for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice is required by subs 1 has been given to the prospective defendant.
Subsection 3(b) provides that where the court considers that the failure to give the required notice or delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the court may, if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
Subsection 3(c) provides that before an application for leave is made to the court the party intending to make the application shall give notice in writing of it and the grounds on which it is to be made to the prospective defendant at least 14 days before the application is made. The plaintiff has complied with this requirement.
The limitation period pursuant to s 47A(1)(b) expired on 26 May 2001.
The plaintiff's application for leave is on the basis that the delay in bringing the action was occasioned by a "reasonable cause". The plaintiff concedes that the defendant has been materially prejudiced by reason of the delay, given that the relevant medical practitioner, Dr Carman, died in January 2005.
The task for the court therefore is twofold. The court must make a determination as to whether the delay in bringing the action is occasioned by a reasonable cause. If so, the court then has a discretion to grant leave "if it thinks it is just to do so".

The plaintiff's medical treatment

In her affidavit sworn on 12 April 2006, Ms Bligh outlines the background to her son's claim.
Ms Bligh's affidavit, the affidavit sworn by Denise Anne Bowen on 18 May 2006 and the letter from the plaintiff's solicitors to the Department of Health dated 17 May 2005 outline the chronology of Jeremy's treatment. Briefly, it is as follows.
On 27 May 2000 Ms Bligh took Jeremy to the emergency department at PMH at around 9 am.
Jeremy was seen by a triage nurse at about 9.25 am and remained in the emergency department for the following four to five hours.
He was under observation with various symptoms including elevated temperature, lethargy, headache and vomiting until about 3 pm when he experienced some shaking in his arm.
Around that time the resident medical officer, Dr Seymour, discussed Jeremy's condition with the emergency department registrar, Dr Sparrow, and queried the need for further investigations such as blood tests and a lumbar puncture.
At 4.10 pm local anaesthetic cream was applied to Jeremy in preparation for a lumbar puncture. The lumbar puncture was not performed until 11.30 pm. At 7.15 pm a blood picture and blood culture were taken. The blood picture was consistent with a bacterial infection. At 8.20 pm Jeremy was described as being very obtund and at 8.35 pm he had a focal fit involving the right hand which lasted for five minutes. He was treated with Diazepam 7.5 milligrams.
At 8.40 pm Jeremy was commenced on intravenous Cefotaxime antibiotics.
After other seizures, a decision was made at around 9.25 pm to incubate Jeremy and do a CT head scan. He was also commenced on antiviral medication.
The CT scan was performed at 10.32 pm.
At 11 pm Jeremy was admitted to the intensive care unit and seen by Dr Paul Carman, paediatrician. It was then that Dr Carman made a clinical diagnosis of bacterial meningitis which he considered had developed during the day.
The results of a lumbar puncture confirmed the diagnosis of strep pneumonia meningitis ("meningitis").
At midday on 29 May 2000, the culture results for the CFS were available and confirmed meningitis.
On 11 June 2000 antibiotics ceased and Jeremy was discharged on 12 June 2000.

Medico/legal investigations

On the request of his solicitors, Jeremy's medical records were reviewed by a paediatric neurologist, Dr Michael Harbord. He reported to the plaintiff's solicitors. The substance of his opinion is that there was an unnecessary delay between Dr Seymour considering blood tests and a lumbar puncture at 15.30 hours on 27 May 2000 and the performance of such investigations.
Dr Harbord's view is that there was a clear indication at 3.30 pm for blood tests to be done and antibiotics commenced. Further, there was a delay of at least 3.5 hours of the commencement of antibiotic treatment. Dr Harbord's opinion is that Jeremy was suffering from a form of meningitis which was evolving over the course of the day, so that earlier treatment with antibiotics would have reduced the neurological insult.
The plaintiff's proposed claim in negligence relates to the delay in performing the relevant medical tests which resulted in a delay in diagnosing meningitis and in administering the appropriate treatment.
By letter dated 21 February 2003, Dr Carman reported that Jeremy had delayed language, delayed comprehension and some problems with motor coordination as a result of the "severe” meningitis episode.
The plaintiff's solicitors acknowledge that the issue of causation of Jeremy's disabilities since May 2000 is complicated by the fact that in February 1999 Jeremy was diagnosed by a speech pathologist at PMH with mild receptive language delay and a moderate expressive language delay. Notwithstanding that, Dr Carman was of the view that the meningitis did have a significant effect on Jeremy's subsequent language development.
Mr Timothy J Hannon, clinical neuro-psychologist, reviewed Jeremy on 16 September 2005 for the purposes of a medico/legal opinion relating to the nature and severity of any cognitive deficits evident on neuro‑psychological assessment and the relationship between any cognitive deficits and the meningitis.
Mr Hannon found that Jeremy displayed ‑
"A very severe language disorder, and substantial difficulties with a number of other cognitive functions. His level of general intellectual functioning is well within the range of an intellectual disability and his general adaptive functioning is very limited".
He found that Jeremy's language skills are extremely limited and that his language skills are below the level necessary for basic functional communication. The neuro-psychological profile "is consistent with the type and severity of the cognitive impairments which may be expected following a severe acquired brain injury". Mr Hannon's ultimate view was that the meningitis contributed substantially to Jeremy's current low level of intellectual and adaptive functioning, and that the illness also hampered the subsequent development of language skills. Mr Hannon was aware of Jeremy's language difficulties which existed prior to the meningitis, but was unable to locate any reference in the materials provided to him to parental or professional concerns over Jeremy's development in areas of intellectual functioning other than language.
On the basis of the medical reports, albeit somewhat limited at this stage of the proceedings, there is at least a prima facie causal connection between the meningitis and Jeremy's present language and cognitive deficits. Further, there is evidence to suggest that the delay in diagnosis and treatment resulted in a more serious neurological insult than would otherwise be the case. Accordingly, the proposed cause of action is not speculative.

The legal principles

"Reasonable cause" in s 47A3(b) "… refers to a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable stand of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man." : Quinlivan v Portland Harbour Trust (1963) VR 25 at 28; approved in Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 at 235 per Burt CJ.
The purpose of s 47A is to provide some protection for the public purse by allowing public authorities proper notice of a potential claim so that it may be fully investigated and appropriate decisions reached in respect of it. That being the case, "that purpose is defeated if … the plaintiffs do nothing by way of notification until they have completed the majority of their enquiries": Smith & Ors v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240 at pars 20, 28.
The delay which must be considered is the period from the date of the alleged conduct to the bringing of the application: Stevens v Motor Vehicle Insurance Trust (supra); Posner v Roberts [1986] WAR 1 at 5; Ridgeway v Shire of Moora (1986) Aust Torts Rep 80 – 033 at 67, 800.
Where there has been a long delay, there is a general presumption that the prospective defendant will be prejudiced in relation to the reliance it might otherwise have placed on the recollections of witnesses: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, I have regard to the rationale for limitation periods outlined in Taylor at pp 551‑553 per McHugh J.
Once it is established that the delay or failure to give the required notice is excused, the court must consider the separate issue of whether the granting of leave is "just". In that regard, the court has an unfettered discretion. The question is "is it fair and proper in all the circumstances that the plaintiff should have leave?": Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661 per Deane J at 663.
Dr Carman died in January 2005. The defendant submits that the delay in giving the required notice and bringing the action has deprived the defendant of obtaining a statement of evidence from Dr Carman who diagnosed Jeremy and continued to see him until 2004. Further, the defendant has lost the opportunity of obtaining statements from witnesses involved in the care of the defendant at a time proximate to the time at which it is alleged the defendant was negligent.
There is an inherent prejudice in a long delay in bringing an action as memories fade, witnesses may disappear, and documentary evidence may be difficult, if not impossible, to locate. However, I would observe this inherent prejudice operates to the detriment of the plaintiff as well as the defendant.
The defendant also submits that there is difficulty in locating and obtaining instructions from Dr Sparrow. I accept this may be the case. However, in my view, those difficulties are not insurmountable.

Was there a reasonable cause for the failure to give the required notice or the delay in bringing the action?

I accept the plaintiff's submission that it is convenient to consider the delay by reference to two separate periods:
1.From 26 May 2000, when the alleged negligence occurred, to 6 February 2003 when the plaintiff's next friend initially consulted a solicitor ("the first period"); and
2.From 6 February 2003 to 17 May 2005 when the plaintiff's solicitors informed the defendant of the intention to claim ("the second period").
I have had the opportunity of reading a number of medical reports written by Dr Carman. In brief, they are as follows:
1.14 February 2001: Dr Carman said the plaintiff had made a "remarkable recovery". He was uncertain how much of the plaintiff's language delay was related to the meningitis as opposed to pre‑existing problems;
2.18 June 2001: Dr Carman reported that the plaintiff had made a pretty reasonable recovery considering his degree of illness, but had some deficits, particularly with his speech;
3.1 September 2001: Dr Carman reported that the plaintiff was 'in great form', 'his speech was really much clearer' and 'he was very happy and well';
4.21 February 2002: Dr Carman reported that the plaintiff was coming along well in pre‑primary, with his speech being much clearer and the content very good;
5.16 August 2002: Dr Walters reported that the plaintiff had been quite well and his family were very pleased with the progress he was making with his speech.
Ms Bligh deposed that she considered that Jeremy was progressing as well as could be expected. She said that as he became older his disabilities became more obvious. By the time he was four years old when she would have expected him to be able to hold conversations with her and understand instructions or directions, he struggled. In 2003, Ms Bligh was advised that Jeremy was not capable of joining mainstream schooling. It was then that she realised that Jeremy did have ongoing problems "that were not going away".
It was at that point, in early 2003, that she decided to seek legal advice about the treatment Jeremy received at PMH in May 2000.
I accept the submission made on behalf of the plaintiff that given Jeremy's pre‑existing language difficulties, it would have been difficult for Ms Bligh, as a lay person, to distinguish between what was simply a continuation of Jeremy's problems experienced prior to the meningitis in May 2000 and what was attributable to delayed diagnosis of the meningitis, assuming she was aware that there was an alleged unacceptable delay in making the definitive diagnosis of meningitis. Indeed, Dr Carman, an expert paediatrician, was uncertain about the issue of causation.
Ms Bligh's concern when Jeremy was not considered fit for mainstream schooling coincided with Dr Carmen's report dated 21 February 2003 which was less optimistic than previous reports.
Children develop language and other skills at varying rates. Some developmental delay may not concern a parent. Notwithstanding Jeremy's pre‑existing language difficulties, given that the treating doctors were happy about his progress, in my view, it was reasonable for Ms Bligh not to suspect that Jeremy's failure to progress and ongoing difficulties which came to a head in 2003 might be caused by some deficiency in the treatment he received at PMH in May 2000.
Accordingly, in my view, as far as Ms Bligh's conduct is concerned, there is a reasonable cause for not giving notice to the defendant giving reasonable information of the circumstances upon which the proposed action would be based.
As to the second period, the plaintiff's solicitor deposed that she initially received instructions on 6 February 2003. It would have been clear that Jeremy's treatment at PMH did not cause the meningitis. The issue to be considered was whether there was some aspect of his treatment which exacerbated the condition.
It is obvious that the plaintiff's solicitor had to conduct some investigations before being sufficiently informed to give appropriate legal advice about the prospects of a claim. The medical reports from PMH were received in October 2003 and instructions with respect to those and the plaintiff's medical care received from Ms Bligh in November 2003. The delay between obtaining initial instructions and requesting the medical reports was apparently the result of the costs agreement going astray in the mail.
In January 2004, after changing her place of employment, the plaintiff's solicitor requested an independent expert report regarding Jeremy's medical care at PMH from Dr Harbord, a paediatric neurologist. She considered this to be necessary so that she could advise the plaintiff as to whether or not she should proceed with the claim. Again, I consider in all of the circumstances that this was a reasonable step to take.
Dr Harbord's report was received in June 2004. Shortly after that the plaintiff's solicitor advised Ms Bligh of her view that if a court accepted Dr Harbord's opinion, then negligence could be established against PMH with respect to the management of the plaintiff's care on 27 May 2000.
In my view, it would have been reasonable for the plaintiff's solicitor at that stage to give the prospective defendant written notice outlining the substance of Dr Harbord's report. The defendant would then have been in the position of investigating the matter and in accordance with the usual practice, obtaining a signed proof of evidence from Dr Carman and other relevant witnesses. I say this notwithstanding the plaintiff's solicitor formed the professional view that she could not recommend issuing legal proceedings before obtaining medical evidence regarding the severity of the plaintiff's disabilities as this was not clear from the PMH medical records, and to follow Dr Harbord's recommendations that the plaintiff undergo a MRI and formal IQ assessment. Written notice to the defendant did not commit the plaintiff to commencing legal proceedings.
Without outlining the full chronology of events thereafter, it would seem to me that those investigations were performed as soon as practicable.
The difficulty for the defendant in not receiving the notice in June 2004 is that Dr Carman died in January 2005.

The prejudice to the defendant is obvious. Dr Carman was an eminent paediatrician who would have been able to give important expert evidence relating to the nature, treatment and effects of meningitis as well as being a witness of fact concerning the plaintiff's treatment in PMH and thereafter. It is unlikely that Dr Carman could have given evidence relating to the delay in administering antibiotics as he did not arrive at the hospital until some hours after that decision was made.
However, even if notice had been given in June 2004, it is highly unlikely that the matter would have proceeded to trial before Dr Carman died in January 2005. Accordingly, the defendant would inevitably suffer some prejudice not occasioned by any actions by the plaintiff or the plaintiff's solicitor. Dr Carman's death may also prejudice the plaintiff to some extent.
Notwithstanding my view that it was reasonable for the plaintiff’s solicitors to give notice to the defendant on or shortly after the receipt of Dr Harbord’s opinion, continuing investigations were necessary and prudent before giving definitive advice to Ms Bligh about the prospects of success in an action in negligence and whether litigation would be financially worthwhile. As the court observed in Carter v State Housing Commission, unreported; DCt of WA; Library No 4646; 5 September 1995:
"… putting of the matter in the hands of solicitors is reasonable action by a prospective plaintiff and any delay by the solicitors in proceeding will not generally be visited upon the plaintiff."
I refer also to Black v City of Melbourne [1963] VR 34 at 39 where the court held:
"It cannot be right to hold that a prospective plaintiff who has acted reasonably in employing a solicitor to attend to his claim can be held not to have reasonable cause for not giving the statutory notice, when the reason for failure to do so is the breach by his solicitor of his duty to act without negligence."
There is no evidence before me that the plaintiff’s solicitor was negligent in any way. In my view, she made an error of judgment believing that she was acting in the best interests of her client. In this regard, her actions should not of themselves jeopardize the plaintiff’s ability to take action.
In all the circumstances, I consider that there was a reasonable cause for the plaintiff’s failure to give written notice to the defendant.

Is it just to grant leave?

In my view, the main issue in determining whether it is just to grant leave is whether the prejudice to the defendant brought about by the delay in receiving notice and bringing the action outweighs the prejudice to the plaintiff in being barred from taking action in negligence.
I have already identified the inevitable general consequences brought about by delay in bringing legal proceedings. The delay in this case is nearly six years.
In a motor vehicle accident for example, injuries to a potential plaintiff are usually identified shortly after the accident, especially in the case of an adult who can articulate symptoms. The cause of the delay in this case was primarily the uncertain nature of the plaintiff’s disability and that Ms Bligh and, it would seem, Dr Carman, did not definitively relate the severity of his on going difficulties to the meningitis until around the time that he was about to start school. Even then, it was necessary to obtain an expert report to identify the potential negligence in the plaintiff’s treatment.
The defendant would not have to defend the action in a vacuum. The contemporaneous hospital records and the medical reports of Dr Carman still exist. Instructions can no doubt be obtained from other relevant witnesses including Dr Sparrow. Independent expert evidence can be obtained. In this regard there is little difference in the plaintiff’s position.
The material before the court at this stage indicates that the plaintiff suffers from a permanent and severe disability which will impact on his schooling and employment prospects. Although Dr Carman’s death may hinder the defence of an action, in my view, the prejudice to the defendant is outweighed by the prejudice to the infant plaintiff in barring his legal remedy for all time.
In all the circumstances, I consider it just to grant leave to the plaintiff to commence an action against the defendant.
Accordingly, for these reasons, I would grant leave pursuant to s 47A of the Act for the plaintiff to commence action against the defendant for damages arising out of his medical treatment on 27 May 2000.

[2006] WADC 79

24 May 2006