Boardman v State of Tasmania
[2006] TASSC 49
•19 June 2006
[2006] TASSC 49
CITATION: Boardman & Ors v State of Tasmania & Ors [2006] TASSC 49
PARTIES: BOARDMAN, Joshua by his next friend
BOARDMAN, Lynette Louise First plaintiff
BOARDMAN, Lynette Louise Second plaintiff
BOARDMAN, Christopher Third plaintiffv
STATE OF TASMANIA First defendant
MAYNE NICKLESS LTD
ACN 004 073 410 trading as
MERSEY COMMUNITY HOSPITAL Second defendant
SHANNON, Dr T G Third defendant
TURNER, Dr Gerry Fourth defendant
HOYLE, Dr Ian Fifth defendant
v
POOLE, Dr Bruce Third party
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 89/2000
DELIVERED ON: 19 June 2006
DELIVERED AT: Hobart
HEARING DATES: 10 April and 2 June 2006
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of Actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Principles upon which discretion exercised.
Wrongs Act 1954 (Tas), s3(6).
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Third defendant: P Tree SC
Third party: C Tsamassiros
Solicitors:
Third defendant: Simmons Wolfhagen
Third party: Butler McIntyre & Butler
Judgment Number: [2006] TASSC 49
Number of paragraphs: 24
Serial No 49/2006
File No 89/2000
JOSHUA BOARDMAN by his next friend LYNETTE LOUISE BOARDMAN,
LYNNETTE LOUISE BOARDMAN and CHRISTOPHER BOARDMAN v
STATE OF TASMANIA, MAYNE NICKLESS LTD, DR T G SHANNON,
DR GERRY TURNER and DR IAN HOYLE v DR BRUCE POOLE
REASONS FOR DECISION MASTER S J HOLT
19 June 2006
The third defendant, Dr Shannon, has applied for an extension of time to bring proceedings against Dr Poole for recovery of a contribution under the Wrongs Act 1954 ("the Act"), s3, and for leave to file and serve a third party notice accordingly. It is about six years since the writ was served. Subject to the grant of an extension of time, contribution proceedings under the Act are to be commenced within twelve months of service of the writ. Under the Supreme Court Rules 2000, r202, leave is needed for a third party notice to be filed and served after delivery of a defence.
The writ was issued on 26 June 2000. The claim is that the first plaintiff, Joshua Boardman, suffered permanent injury, namely, severe brain damage and spastic quadriplegia as a result of the negligence of the defendants during the course of his presentation and admission at the Mersey Community Hospital on 2 July 1997. The second and third plaintiffs are Joshua's parents. There are five defendants. It is alleged that either or both of the first and second defendants were the operators of the hospital and that the third defendant, Dr Shannon, and the fourth and fifth defendants were doctors employed at the hospital.
For the purpose of this application, Dr Shannon and Dr Poole have agreed some facts. Most of the facts agreed are that medical records noting certain matters exist. The facts and records are to the following effect. Joshua was born at the hospital on 7 June 1997. He was three weeks premature. The day after his birth, Joshua and his mother were discharged home. A few days later on 13 June 1997, Joshua was presented by his mother to a locum at Dr Poole's medical practice at Port Sorell and a record was made that Joshua had suffered from an "Apnoea attack". Then on Saturday, 28 June and Sunday, 29 June, Joshua was presented at a different medical practice, the Oldaker Medical Centre at Devonport, but medical records of those two attendances are not available. On Monday, 30 June and Tuesday, 1 July, Joshua was presented to Dr Poole at his medical practice at Port Sorell. Dr Poole's notes include reference to Joshua vomiting back food quickly; losing weight; sleeping lots and being miserable. On Wednesday, 2 July 1997, Joshua was presented at the Mersey Community Hospital. At 9.20am the triage nurse noted, amongst other things, that Joshua was lethargic, pale, vomiting, coughing, cyanosed and dehydrated. At 9.45am he was seen at the hospital by the fifth defendant, Dr Hoyle, who ordered a chest x-ray and the taking of a blood sample for a full blood examination. Dr Hoyle reviewed the chest x-ray at 11.15am and Joshua was transferred from the department of emergency medicine to the paediatric ward. At about 1pm the full blood examination report ordered by Dr Hoyle came to hand and Joshua was reviewed in the paediatric ward by a paediatric registrar who telephoned Dr Shannon. At about 1.30pm, Joshua was reviewed by Dr Shannon. He directed a transfer to the intensive care unit with consideration to be given to transferring Joshua to another hospital. At about 3pm, Joshua was admitted to the intensive care unit in a humidicrib. At about 5pm, the fourth defendant, Dr Turner, commenced intubation. At about 11pm, a transfer team from the Royal Hobart Hospital arrived, and at about midnight, Joshua left the hospital to be transferred to Hobart.
In February 2005, a report commissioned on behalf of the first, second, fourth and fifth defendants was copied to the solicitors for Dr Shannon. The author of the report was Dr Bernard Kelly , and the report included the following:
"Earlier admission may well have been beneficial to Joshua. One needs however to recall that many hours passed from the time that Joshua presented to the hospital until intubation was performed. One could equally argue that this may have been critical. Expert reviewers have already commented upon this matter.
…
Joshua was premature and three weeks old when he presented for the first of 4 general practitioner consultations. He lost 220Gms. over a five day period. Neither this weight loss nor the duration of illness was detected by Dr Poole. If either had been detected, adequate practice would have required discussion of the baby with a consultant. This would have led to earlier admission to hospital. When eventually admitted the child was apnoeic and cyanotic with demonstrated deterioration over the following hours.
It is not possible to state what degree of cerebral anoxia, if any, was suffered by Joshua in the days prior to admission. Earlier admission may well have improved Joshua's long-term prognosis."
The notice which Dr Shannon proposes to issue against Dr Poole contains the following:
"The Thirdnamed Defendant claims to be indemnified and/or entitled to contribution from you for the Plaintiffs' claim on the following grounds:-
(a) At all material times, the Thirdnamed Defendant was:-
(i) a legally qualified medical practitioner;
(ii)appointed as a Visiting Medical Officer in paediatrics for patients of the Mersey Community Hospital ("the Hospital"); and
(iii)providing medical services of that nature when required to various members of the public who were patients at the Hospital.
(b) At all material times, the Third Party:-
(i) was a legally qualified medical practitioner;
(ii) carried on medical practice as a general practitioner;
(iii)was the general practitioner of the Firstnamed Plaintiff from 7 June 1997 to 2 July 1997.
(c) At all material times, the Third Party owed to:-
(i) the Firstnamed Plaintiff;
(ii) the Secondnamed Plaintiff;
(iii) the Thirdnamed Plaintiff
a duty to exercise reasonable care and skill in the diagnosis and treatment of the Firstnamed Plaintiff.
(d)Over the period of two (2) days prior to 2 July 1997, the Third Party consulted the Firstnamed Plaintiff in respect of symptoms including:
(i) lethargy;
(ii) poor feeding;
(iii) pallor;
(iv) weight loss;
(v) general deterioration of physical condition;
(vi) intermittent apnoea.
(e) By the Plaintiff's [sic] Statement of Claim, it is alleged that:-
(i) the Firstnamed Plaintiff was admitted to the Hospital on 2 July 1997;
(ii)the Thirdnamed Defendant was in breach of a duty of care owed to the Firstnamed Plaintiff;
(iii)and/or in breach of the terms of an agreement between the Secondnamed Plaintiff and the Defendant;
failed to exercise reasonable skill and care in the diagnosis and treatment of the Firstnamed Plaintiff and by this action claims damages in respect of such injury, and the costs of proceedings.
(f)If the Firstnamed Plaintiff was injured as alleged which is not admitted by the Thirdnamed Defendant, and if the Thirdnamed Defendant is liable for the Plaintiff's injury, which is denied, the Thirdnamed Defendant says that he is entitled to an indemnity and/or contribution from the Third Party in respect of the Plaintiffs' claim on the grounds that the Firstnamed Plaintiff's injury was caused by the Third Party's negligence.
Particulars
The Third Party was negligent, in that, he:-
(i)failed to diagnose that the Firstnamed Plaintiff was suffering from a serious illness promptly or at all;
(ii)failed to diagnose that the Firstnamed Plaintiff was suffering from an infective process promptly or at all;
(iii)failed to undertake any or any adequate diagnostic tests;
(iv)failed to refer the Firstnamed Plaintiff for specialist paediatric review;
(v)failed to pay any or any adequate regard to;-
Athe nature of the symptoms suffered by the Firstnamed Plaintiff;
Bthe frequency of the symptoms suffered by the Firstnamed Plaintiff;
Cthe deterioration of the Firstnamed Plaintiff's condition; and/or
Dthe failure of the Firstnamed Plaintiff's condition to improve;
(vi)allowed the Firstnamed Plaintiff's condition to deteriorate without:-
Ataking any or any adequate investigative steps to determine the nature of the condition from which the Firstnamed Plaintiff was suffering;
Bobtaining specialist paediatric opinion regarding the nature of and deterioration in the Firstnamed Plaintiff's symptoms;
Cadmitting the Firstnamed Plaintiff or arranging for the admission of the Firstnamed Plaintiff to hospital."
Dr Shannon is the only defendant who is separately represented. The other defendants issued third party proceedings against Dr Poole several years ago. As to how it came about that Dr Shannon did not file and serve a third party notice at about the same time that the other defendants issued their notice, and why this application was not pursued earlier I refer to the affidavit evidence of Dr Shannon's solicitor. None of this evidence is contested. It is as follows.
In late 2000, the solicitors for the first, second, fourth and fifth defendants advised that the hospital operator would take over conduct of Dr Shannon's defence. A notice of change of solicitors was accordingly filed in January 2001. In October 2001, the solicitors for the hospital and the other defendants sent a letter to Dr Shannon's former solicitors advising that they had taken over Dr Shannon's defence because they believed that he was an employee at the hospital, and that they now believed that was not the case. The hospital's solicitors advised that an application for leave to issue a third party notice against Dr Poole on behalf of all defendants was pending, but that it would not be pursued further on behalf of Dr Shannon, absent a specific request. No such request was made, and so the third party notice which was issued by the hospital's solicitors in December 2001 was issued in the names of the first, second, fourth and fifth defendants only. The hospital's solicitors filed a notice of ceasing to act for Dr Shannon in February 2002, and on 19 March 2002, Dr Shannon's current solicitors received instructions to act for him. On 22 March 2002, the hospital's solicitors sent to Dr Shannon's solicitors a copy of the third party notice. In April 2002, Dr Shannon's new solicitors notified Dr Poole's solicitors of an intention to claim contribution.
In October 2002, Dr Poole's solicitors wrote to Dr Shannon's solicitors advising that they had suggested to the solicitors for the first, second, fourth and fifth defendants that they consider discontinuing the third party proceedings as it appeared that those proceedings had been based on the incorrect premise that Joshua had been seen by Dr Poole on each of the four days leading up to his admission to the hospital. In fact, Joshua had been seen by two different doctors at the Oldaker Medical Centre in Devonport on Saturday, 28 June and Sunday, 29 June. Dr Poole was not connected with that practice and did not see Joshua until Monday, 30 June.
In light of this information, Dr Shannon's solicitors wrote to Dr Poole's solicitors a few days later in October 2002 saying that they were seeking instructions as to whether to wait and see if the other defendants abandoned the claim against Dr Poole. Dr Poole's solicitors responded by letter dated 28 October 2002, saying:
"We will keep you appraised of the other Defendant's [sic] attitude with regard to the third party proceedings. We confirm that time will not run with respect to the delay in issuing the application for the third party notice that has arisen from the 14th October 2002."
On 22 May 2003, Dr Poole's solicitors again wrote to Dr Shannon's solicitors. In that letter they said:
"In reviewing our file, we do not appear to have previously advised you that the solicitors for the other defendant [sic] advised in February 2003 that their instructions were that the Third Party proceedings against Dr Poole were to remain on foot, despite the fractural [sic] error upon which the Third Party proceedings were initiated. It is therefore a matter for your client as to whether he wishes to continue with his Third Party application against Dr Poole."
However, by the time this letter was received those representing Dr Shannon's interests had already formed a view according to the solicitor's affidavit that "based on the information obtained, there appeared to be very little basis for contribution from Dr Poole to a Third Party Notice."
Thereafter, Dr Shannon's solicitors in connection with the action generally gathered more information. In February 2004 they received a copy report commissioned on behalf of the first, second, fourth and fifth defendants. That report, from Paediatric Neurologist Associate Professor Inder, included the following:
"In summary, thus I think that it is my opinion that Joshua suffered from severe viral bronchiolitis presumed respiratory syncytial virus. He was increasingly unwell for several days prior to admission and encephalopathic with probable hypoxia and hypocarbia for at the [sic] 12 hours prior to admission. With his poor respiratory status through the night one could argue that it would have been appropriate for his parents to have called an ambulance or taken Joshua to the emergency room at that stage. His care at the General Practitioners Service on the 28th, 29th & 30th July [sic] appear [sic] entirely appropriate although given the length of his illness by the 1st July it may have been appropriate to have admitted Joshua to the hospital at the [sic] stage."
In early February 2005 the solicitors for Dr Poole forwarded to the solicitors for Dr Shannon a proof of evidence. The proof was from Dr G Graeme Riddoch and referred to some questions in the third party proceedings. It included the following:
"I have been requested to comment on Dr Kelly's report with particular reference to:
(a)Dr Poole's alleged failure to obtain the history of Joshua having been seen by two other GPs on the two days prior to his consultation with Joshua and Lynette Boardman on 30th June 1997; and
(b)The matter of the recorded weight loss of Joshua.
…
The real issues were:
(a)was the child's condition deteriorating significantly?
(b)were the clinical signs serious enough to warrant admission?
As set out earlier in these reasons, in February 2005, shortly after receiving the Riddoch proof, Dr Shannon's solicitors received a copy of the report of Dr Kelly referred to therein. In that report Dr Kelly expressed the opinion that Dr Poole should have discussed Joshua's condition with a consultant and if this had occurred there would have been an earlier admission to hospital with a chance of an improved outcome.
Dr Shannon's extension of time application was filed in March 2005. Shortly after the filing of that application, the parties sent to the Court a memorandum requesting that the hearing of the application should stand adjourned sine die. An adjournment was accordingly granted and the parties did not request a hearing of the application until March 2006.
Under the Act, s3(6), the discretionary power to extend time is not enlivened unless the Court "is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension." Counsel for Dr Poole did not assert that any such prejudice existed and conceded that the statutory prerequisite should be regarded as having been fulfilled.
The usual considerations in deciding whether or not to extend time were shortly stated by the Full Court in Hill v Iluka Corporation Ltd (2002) TASSC 113. At par23 the Court said:
"In most cases … regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case to extend … time."
Relying on the usual considerations, counsel for Dr Poole submitted that insufficient evidence had been presented on the hearing of the application to show a prima facie case against Dr Poole; that the explanation for delay contains gaps and so is unsatisfactory, and that Dr Poole has suffered prejudice in that he has shared information with Dr Shannon, namely, the proof of Dr Riddoch which according to counsel for Dr Poole led to Dr Shannon's advisors reconsidering the question of whether a claim for a contribution should be made by Dr Shannon against Dr Poole.
The evidence presented on the hearing of this application only went so far as to say, quoting from the report of Dr Kelly "Earlier admission may well have improved Joshua's long-term prognosis". It may be as counsel for Dr Poole submits that for there to be a prima facie case the evidence would need to go further and show not just the loss of a chance, but that earlier admission to hospital would in fact have prevented or lessened the injury. Regardless of this debate I am satisfied that the third party proceedings will raise a serious question to be tried. The fact that lost chance damages are arguably available in medical negligence cases is apparent from the analysis of Smith AJA in Gavalas v Singh (2001) 3 VR 404 at pars37 – 43. See also Law of Torts, Third Edition, R P Balkin and J L R Davis at 9.4 and Professional Liability in Australia, Walmsley Abadee and Zipser at 2.1050 – 2.1070 and compare lost chance claims with increased risk claims eg Seltsam Pty Ltd v McGuiness (2000)49 NSWLR 262 at pars 102 – 120. Counsel for Dr Shannon made it clear in his submissions that the proposed third party proceedings are intended to be argued on alternative bases. Firstly, that if Joshua had sued Dr Poole he would have recovered damages for his injury as it is more likely than not that the injury would have been avoided with earlier admission to the hospital and, in the alternative, that Joshua would have recovered damages, if not for his injury, then for the loss of the chance of avoiding or reducing it. Although the alternative line of argument may not be open on the proposed third party notice as presently drafted counsel for Dr Poole took no point about this. In particular, it was not submitted than an extension of time which otherwise would be appropriate should be refused because the proposed notice has not been drafted to accommodate the alternative lost chance basis for the claim.
As to the assertion that there are gaps in the explanation for delay the primary focus of counsel for Dr Poole was on the delay between May 2003 when Dr Poole's solicitors advised Dr Shannon's solicitors that the other parties were not abandoning the third party claim and March 2005 when the application was filed on behalf of Dr Shannon. Counsel for Dr Poole submitted that the delay during this period has been left unexplained. In my view, this period is explained. As previously noted by the time the letter of May 2003 was received those representing Dr Shannon's interests had already formed the view that there appeared to be little basis for a contribution claim. When further information in the form of Dr Kelly's report came to the attention of Dr Shannon's solicitors in early 2005 there emerged reason to pursue third party proceedings and an application was then promptly filed.
As regards the prejudice asserted by counsel for Dr Poole, even if the provision of the Riddoch proof was detrimental to Dr Poole's interests, it was not detriment or prejudice caused by delay and so, in my view, is not relevant prejudice.
Even if I had accepted that a prima facie case had not been made out, that the delay had not been satisfactorily explained and even if I had accepted Dr Poole's prejudice point I would still have had no hesitation in granting the extension of time sought. Towering over all other matters is the fact that the question which Dr Shannon wants to litigate, namely, whether Dr Poole is liable to contribute, is already a question in the proceeding. Under the Act, s3(1)(c), an entitlement to a contribution will arise if Dr Poole is a "person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage". If Dr Poole would have been liable to pay damages in respect of Joshua's injuries if sued by Joshua then Dr Poole will be liable to make contribution. Third party proceedings under the Act, s3(1)(c) have already been taken against Dr Poole by the other defendants and counsel for Dr Poole has said that no limitation point will be taken in respect of those proceedings and there was no hint that Dr Poole will be applying to have those proceedings struck out. There was no suggestion by counsel for Dr Poole that Dr Shannon's proposed proceedings (even taking into account the case being put in the alternative on a lost chance basis) will differ materially from the allegations in the existing third party proceedings. All Dr Shannon's proposed proceedings will do is enable him, in common with the other defendants, to have the benefit of any finding which may be made against Dr Poole in the action.
The discretion to extend time must be exercised in accordance with what the justice of the case requires. There is no suggestion that by reason of delay Dr Poole has been or will be deprived of the opportunity to have a fair trial. There is no suggestion that allowing the proposed third party proceedings will materially add to the length or cost of the trial. The plaintiffs and the other defendants were given notice of the application and did not oppose the making of the orders sought. There was no suggestion that allowing the application would cause to Dr Poole any oppression, financial or otherwise. If at the trial of the action there is a finding that Dr Poole would have been liable if sued by Joshua I can see no injustice whatsoever in allowing Dr Shannon to have the same benefit that will be received by the other defendants in their third party proceedings. On the other hand, I can see injustice in depriving him of that benefit. The justice of the case rests with the grant of the extension of time sought.
There will be an order granting leave to file and serve a third party notice and an order that the time limited by the Wrongs Act for the bringing of contribution proceedings by Dr Shannon against Dr Poole is extended. I will hear counsel as to the precise terms of the orders.
0
1
1