Bolas v Calvary Healthcare Limited
[2016] ACTSC 58
•16 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gretel Jayne Bolas v Calvary Health Care Limited |
Citation: | [2016] ACTSC 58 |
Hearing Date: | 16 March 2016 |
DecisionDate: | 16 March 2016 |
Before: | Mossop AsJ |
Decision: | The defendant’s application for a summary judgment is refused and the costs of the application are the defendant’s costs in the cause. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – application for summary judgment – case alleging medical negligence – which provision of s 30B of the Limitation Act 1985 (ACT) is applicable – defective pleading by both parties – application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 21, 406(1)(e), 430, 433(3), 480 Court Procedures Act 2004 (Act), s 5A Limitation Act 1985 (ACT), s 30B |
Cases Cited: | Doyle v Gillespie [2010] ACTSC 21 Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 Stingel v Clark (2006) 226 CLR 442 |
Parties: | Gretel Jayne Bolas (Plaintiff) Calvary Health Care ACT Limited (Defendant) |
Representation: | Counsel Ms C Oldfield (Plaintiff) Mr PG Woulfe (Defendant) |
| Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number(s): | SC 134 of 2015 |
MOSSOP AsJ:
Introduction
By application dated 9 December 2015 the defendant has sought summary judgment, or in the alternative, that the Statement of Claim dated 23 April 2015 be struck out and that judgment be entered for the defendant. The basis for the application is that the plaintiff’s claim is statute barred. It is uncontroversial that the principles applicable upon such an application are those summarised in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 at [5].
The basic facts
The plaintiff has brought proceedings against the defendant in relation to alleged medical negligence. The proceedings were commenced on 28 April 2015.
The plaintiff was born on [date redacted] 1991 and was 14 years of age in September 2006.
She alleged that on 11 September 2006 she suffered a perforation of the appendix and contamination of the abdominal cavity, reproductive and other organs with bowel contents due to alleged breaches of the defendant’s duty of care. The plaintiff alleged that such breaches occurred on 10 September 2006 and 11 September 2006.
On 27 July 2015, the defendant filed a defence which included a statement that the plaintiff’s claim was statute barred by the effluxion of time. The plaintiff did not file any reply to the defence.
Defendant’s submissions.
The defendant contended that s 30B of the Limitation Act 1985 (ACT) (Limitation Act) applies. Section 30B provides:
30BSpecial provision in relation to children—claims relating to health services
(1)This section applies if—
(a) a child (the plaintiff) suffers personal injury that gives rise to a claim for damages; and
(b) the claim relates to the provision of a health service.
(2)A cause of action for damages in relation to the claim is not maintainable if brought 6 years or more after the day the accident giving rise to the injury happened.
(3)However, if the injury is or includes a disease or disorder, the cause of action is not maintainable if brought after whichever of the following periods ends first:
(a) 6 years after the day the plaintiff (or the plaintiff’s parent or guardian) first knows or ought reasonably to have first known—
(i)that the plaintiff has suffered an injury that is or includes a disease or disorder; or
(ii)that the injury is related to someone else’s act or omission;
(b) 12 years after the day the accident giving rise to the injury happened.
NoteThe period mentioned in s (3) can be extended under s 36 but the period mentioned in s (2) cannot be extended under that section (see s 36 (6)).
(4)In considering whether or not the period mentioned in subsection (3) should be extended under section 36, the court must have regard to the opinion of a medical expert (or experts) on the question of when the plaintiff (or the plaintiff’s parent or guardian) first knew, or ought reasonably to have first known—
(a) that the plaintiff had suffered the injury; or
(b) that the injury is related to someone else’s act or omission.
(5)In this section:
health service—see the Human Rights Commission Act 2005, section 7 (1) and (3)(a).
Section 30B(2) provides that a cause of action for damages in relation to a claim is not maintainable if brought six years or more after the day the accident giving rise to the injury happened. The defendant contended that the “accident” happened on either
10 September or 11 September 2006. As a consequence, the defendant submitted that the plaintiff’s claim became statute barred on 9 September 2012 or
10 September 2012. The defendant therefore contended that the plaintiff’s claim must fail based on the provisions of ss 30B(1) and (2) of the Act.
The defendant submitted that the plaintiff’s claim is not for an “injury” that “is or includes a disease or disorder” as that has not been pleaded. Therefore the defendant submitted that s 30B(3) of the Limitation Act is irrelevant and the plaintiff’s claim must fail.
The defendant submitted that the plaintiff had never sought nor been granted any extension of time pursuant to s 30B(4) of the Limitation Act and therefore the plaintiff’s claim must fail.
In oral submissions counsel for the defendant emphasised the form of the pleading which only referred to the plaintiff suffering “injuries, loss and damage” and provided particulars of damage in the categories “injuries” and “disabilities”. He submitted that there was no pleading of any “disease or disorder” per se. He submitted that it was not possible to disaggregate the pleaded claim of an injury so as to extract from it a disease or disorder which might be the subject of s 30B(3) and that no separate cause of action arose in relation to any disease or disability as opposed to the initial injury identified.
Plaintiffs submissions
The plaintiff submitted that the defendant’s contention that the plaintiff has not included any injury that is or includes a disease or disorder was an overly narrow interpretation of the pleadings and relies upon an overly narrow interpretation of the term “injury” in s 30B. She submitted that a number of the injuries and disabilities identified are well known as diseases or disorders or the product of gradual processes.
She submitted that the decisions in Stingel v Clark (2006) 226 CLR 442 and
Doyle v Gillespie[2010] ACTSC 21 determined that when considering whether a claimed injury is “a disease or disorder”, the ordinary meaning of those terms is utilised without attempting to characterise the type or origin of the disease or disorder and without the application of extrinsically imposed qualifiers or descriptors such as “traumatic” or “insidious”.
Therefore, she submitted that the important question was when the plaintiff first knew that she suffered the relevant injuries and, having regard to the evidence in the exhibit to the affidavit of her solicitor dated 12 February 2016:
1.it was only after surgery by Dr Bates on 13 September 2011 that the plaintiff became aware of her likely infertility; and
2.it was only in 2011 that the plaintiff became aware of choking symptoms which were a consequence of psychological injury.
Because this knowledge was only obtained in 2011 the plaintiff submitted that it was open to her to commence proceedings up until 2017.
Finally, the plaintiff contended that there was no need for her to file a reply because r 480 of Court Procedures Rules 2006 (ACT) (the CPR) has the effect that the plaintiff is taken to have joined issue with the matters raised in the defence.
Defendants submissions in reply
In relation to the allegations that the plaintiff first knew about injuries arising from a disease or disorder in 2011 the defendant submitted that, consistently with the decision in Read v Brown (1888) 22 QBD 128 at 131 and r 430 of the CPR, a party should not be permitted to rely on facts without having pleaded those facts. To the extent that the plaintiff sought to assert that the injuries in the pleading “include a disease or disorder” then she may not do so unless the relevant facts had been pleaded and, as a consequence, the defendant was, on the current pleadings, entitled to judgment.
Consideration
In my view the determinative issue in the present case arises from the manner in which the case had been pleaded. Pleadings are useful only if parties actually use them to expose rather than obscure the case that they seek to run. A failure to properly expose the case that is to be run is not only inconsistent with the particular obligations in the rules in relation to pleading but obviously inconsistent with the duties of parties under
s 5A of the Court Procedures Act 2004 (Act) and r 21 of the CPR.
In my view, the pleading of both the claim and the defence was defective and led to the problems which arise in the present application.
In relation to the Statement of Claim, notwithstanding it is not a personal injury claim arising out of a motor vehicle accident or employment, the pleader has picked up some of the aspects of the forms of abbreviated pleadings applicable in relation to such claims. In particular paragraph 36 includes separate categories of “injuries” and “disabilities” which are referred to in Forms 2.4 and 2.5. Similarly, the Statement of Claim provided a list of health professionals who had treated the plaintiff in paragraph [36], reminiscent of the requirement of Forms 2.4 and 2.5.
The only reason that any limitation issue arises in the present case is because it has been raised by the defendant in its defence. The plaintiff was not obliged to anticipate in her pleading a limitation defence which may or may not be pleaded.
The relevant pleading in the defence is that in paragraph 9 which provides:
9. Further and in answer to the entirety of the allegations contained in the Statement of Claim the defendant says that the claim is statute barred by the effluxion of time.
The significant points about this pleading are that:
(a) contrary to r 406(1)(e) it does not identify the relevant provision of the Limitation Act which is relied upon; and
(b) it does not plead any material fact necessary to make the provision of the Limitation Act operative in the circumstances of the case.
As a result, the only effect of the pleading is to alert the plaintiff that some unspecified limitation issue will be raised. Because of the lack of specificity in the pleading, it is no more than an invitation to investigate the operation of the Limitation Act to see how it applies in the circumstances of the case.
This deficiency was partially cured by the provision of particulars which, contrary to
r 433(3) were not filed by the defendant. The request for particulars of paragraph 9 was met by the objection that it was not a proper request for particulars. It is not clear how that assertion could reasonably be made in the circumstances. However, under cover of that objection, the defendant did disclose its contention that the limitation period “probably expired on 9 September 2012 or 10 September 2012 in accordance with s 30B(2) of the Limitation Act 1985”. The defendant then said “the defendant reserves the right to provide further particulars if further information is obtained in the course of our investigations”.
When requesting particulars, the plaintiff asserted an entitlement to file a reply within 14 days of the provision of proper particulars. Notwithstanding that particulars were provided on 7 September 2015, no such reply was filed. There was no explanation as to why this was not done.
Notwithstanding the objection to the provision of particulars and the qualification that the defendant had reserved its position to provide further particulars at some unspecified future stage of the proceedings, it was clearly open to the plaintiff to file a reply responding to the contention that s 30B(2) applied.
In the present case the critical question is which party was obliged to plead and prove the material facts, either establishing the limitation defence or providing an answer to the limitation defence. The defendant contended that the burden lay on the plaintiff to plead facts in a reply and that in the absence of doing so, the plaintiff was not entitled to raise the various factual matters that she had in her written submissions. The plaintiff on the other hand, contended that joining issue with the defence by operation of r 480(2) was sufficient.
Had the limitation defence been properly pleaded, that is, pleaded in a manner which identified the relevant statutory provision and the material facts necessary to make that provision operative, then there is no doubt that the plaintiff would have been required to file a reply which pleaded the material facts which would allow her to avoid the operation of that defence. If she did not do so then she would not be entitled to prove facts at the hearing which avoided the operation of the limitation provision and if the facts relied upon by the defendant were clearly established the defendant may be entitled to summary judgment.
However, as I have pointed out above, the defence did not properly identify the statutory provision or material facts relied upon and the answer to the request for particulars, which in my view is no substitute for a proper pleading, was hedged about by the objection to provision of particulars and the reservation of the defendant’s entitlement to particularise something else in future.
In those circumstances I would decline, in the exercise of my discretion, to grant summary judgment or strike out the claim because there has been only a joinder of the issue. In my view to make an order for summary judgment on the basis of the pleadings would be inappropriate because of the deficiencies in the pleadings on both sides of the record. Further, having regard to the evidence available to the plaintiff, I am satisfied that the plaintiff by filing a reply may plead facts which give her an arguable reply to the limitation defence. While clearly the pleadings of both sides would be able to be amended so as to remove their defects, the filing of a reply will put the pleadings in a state which, although very clearly not perfect, would be in a form which would permit a trial to proceed.
I will therefore dismiss the application.
I will hear the parties as to costs and the further directions that are needed before the matter is referred back to the Deputy registrar.
[The parties were heard on costs and directions]
Costs
In my view the appropriate costs order is an order that the costs of the application be the defendant’s costs in the cause. Notwithstanding the deficiencies in the pleading of the defence, following the giving of the inadequate particulars in September 2015 and, certainly, after the filing of the present application, the plaintiff was in a position to remedy any issue in relation to summary judgment by the filing of a reply which clearly identified her position. For whatever reason she did not do so. For that reason I do not consider that it is appropriate that she should be the beneficiary of a costs order arising out of this application. However, I do not consider that it is appropriate for the defendant to necessarily recover its costs because a significant contributing factor to the inadequacy of the pleadings was the inadequate pleading of the limitation issue in its defence. It is for that reason that I will make any costs order in favour of the defendant contingent on the defendant succeeding in the proceedings.
Orders
The orders of the Court are:
1.the application in proceedings dated 18 December 2016 is dismissed;
2.the plaintiff has leave to file a reply by 23 March 2016;
3.the costs of the application dated 18 September 2015 are the defendant’s costs in the cause; and
4.the proceedings are listed for further a listing hearing before the Deputy Registrar on 24 March 2016 at 10.15am.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop Associate: Date: 5 April 2016 |
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