Bovell v Perthradclinic Ltd - [2018] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BOVELL -v- PERTHRADCLINIC LTD [2018] WADC 49
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   13 APRIL 2018
DELIVERED          :   27 APRIL 2018
FILE NO/S:   CIV 4405 of 2015
BETWEEN:   NICHOLAS BOVELL
Plaintiff
AND
PERTHRADCLINIC LTD
First Defendant
PRCM PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Removal of case from inactive cases list - Turns on its own facts

Legislation:

District Court Rules 2005 r 44G(5)

Result:

Matter removed from the inactive cases list

Representation:

Counsel:

Plaintiff	:	Mr R Butcher
First Defendant	:	Mr M Williams
Second Defendant	:	Mr M Williams

Solicitors:

Plaintiff	:	Butcher Paull & Calder
First Defendant	:	Minter Ellison
Second Defendant	:	Minter Ellison

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

Lashansky v Legal Practice Board [2010] WASC 159

DEPUTY REGISTRAR HEWITT:

This matter was commenced by a writ filed on 11 December 2015. The cause of action pursued by the plaintiff is based in tort and the allegation upon which he relies is that in the course of an MRI examination he was injected with a contrast agent called Omniscan. He pleads that he was told by a servant or agent of the first and/or second defendant that he would receive an Omniscan contrast agent injection and that a constituent contained in that injection called Gadolinium was not harmful and it would be excreted from his body within 24 hours. It is pleaded that in reliance of those representations he consented to the injection.
The plaintiff alleges that as a consequence of the injection he suffered Gadolinium toxicity poisoning which had a serious effect on his health and work capacity. The defendant takes issue with that description of events and among other things raises the proposition that the plaintiff signed a consent to the administration of the Omniscan injection and that consent contained a reference to the various adverse effects which could be caused by such an injection.
The action progressed at a reasonable pace and was entered for trial on 24 February 2017. Included within the certificate forming part of the entry for trial was a certification that the plaintiff had complied with O 36R of the Rules of the Supreme Court 1971. That order is referable to the procedures required to be undertaken when expert evidence is to be called at a trial. Notwithstanding the certification it is obvious that strict compliance with the section had not been achieved although the plaintiff had obtained the opinion of a doctor who was a professor of radiology at the University of North Carolina concerning the toxicity of Gadolinium and its use as a contrast agent and the dangers and alternatives related to such use. Thereafter the matter proceeded to a number of pre-trial conferences and adjournments and ultimately came before the court in a listing conference on 11 September 2017.
At that stage it was apparent that the plaintiff's case was not in fact ready for trial and order was made, which is agreed between the parties to be by consent, that the action be placed on the inactive cases list. The application before me relates to that order and seeks the court to remove the matter from the inactive cases list. The effect if the matter is not removed from the inactive cases list would be that the matter would automatically be dismissed if it remained on that list for six months. That outcome however was avoided by an order made by Deputy Registrar Kubacz which in effect maintained the status quo until the determination of the application which was argued before me.
The starting point for considering such an application is the District Court Rules 2005 and in particular r 44F. That rule provides that a party to a case on the inactive cases list may apply to the court for an order that it be taken off that list and the court may order a case to be taken off the list if satisfied the case will be conducted in a timely way or for any other good reason. No doubt there are many other good reasons such as for instance an infant's claim requiring the maturation of that infant before the full impacts of injury upon him can be quantified, but nonetheless in the present circumstances the only relevant issue is whether or not I am satisfied the case will be conducted in a timely way. In considering whether a case is to be conducted in a timely way I am of the view that an eye must be had to the complications and difficulties which a party may face in progressing a case to its ultimate determination. Some cases are straightforward and the evidence to support them is easily garnered and presented. Others are more complex involving difficult factual issues, complex medical evidence and a scarcity of experts who may be able to provide the evidence which is required to run the case successfully.
In the present case the reasons advanced by the plaintiff to explain the delay to date, revolve around the difficulty of obtaining an expert report concerning the toxicity Gadolinium, the effects in the body, and its use as an agent in obtaining MRI scans.
Although an attack made on the materials filed by the plaintiff, I am of the view that the plaintiff has taken considerable strides and put in considerable effort to identify individuals who may be able to provide the expert evidence which he needs to present in the present case. He has done so since the listing conference at which the action was placed in the inactive cases list. It is clear that the plaintiff has exerted considerable personal effort and presumably taken on some significant financial obligations in an attempt to obtain the evidence which he plainly needs. His efforts however have not produced immediate results. The first expert whom he sounded out seems unlikely to produce a report at all and as a consequence of that disappointment the plaintiff has approached another expert with apparently better results. Undoubtedly these tasks should have been untaken at an earlier stage and probably prior to the matter being entered for trial, but nonetheless the plaintiff has shown considerable energy in attempting to obtain this evidence. Both of the experts whom the plaintiff has consulted are based in the United States and it appears that when a report is obtained he will refer it to a further expert for an opinion as to the requirement to advise patients of their risks of the procedure which was proposed to be undertaken in his case.
The course embarked upon by the plaintiff undoubtedly would take some time. However, were I to grant the application there may be utility in programing the matter to monitor the situation.
This case is unusual because the matter was placed on the inactive cases list by the consent of the parties, whereas in normal circumstances cases go onto the inactive cases list because of a procedural failure on the part of a party to comply with a milestone set under the terms of the District Court Rules.
The defendant has been critical of the plaintiff's delays in bringing the present application arguing that such delays should mitigate against the court being satisfied that the action will be continued in a timely manner. The delays in this case are not particularly troubling. The limitation period for the cause of action pursued by the plaintiff is, as I dictate this decision, yet to expire. It is difficult to see that the delays which undoubtedly have occurred in this case have in fact prejudiced the defendant in any discernible way. Nonetheless delays are not to be taken lightly. I also note that many of the delays prior to the entry for trial were by consent of the parties and it appears that up until the listing conference the defendants were happy to extend milestones whether by way of indulgence or to suit their own needs and it is only more lately that the defendant has been concerned about the delays.
References made by the defendant to s 5PB of the Civil Liabilities Act 2002. That provides in s 5PB(1) that an act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission is widely accepted by health professional peers as competent professional practice. Section 5PB(2) however qualifies that provision in the following terms:
Subsection 1 does not apply to an act or omission of a health professional in relation to informing a person of a risk of injury or death associated with:
(a)the treatment proposed for a patient or a foetus being carried by a pregnant patient; or
(b)a procedure proposed to be conducted for the purpose of diagnosing a condition of a patient or a foetus being carried by a pregnant patient.
It is said by that the protection offered by s 5PB(1) can be invoked by the defendant in this case because of the exclusion contained in s 5PB(2). Perhaps I am missing something but it seems to me that s 5PB(2) is clearly applicable and s 5PB(1) does not operate to afford the defendants a defence in this case even if their practice was consistent with that of professional peers.
The defendant has levelled a suite of criticisms concerning the affidavit evidence provided by the plaintiff to support his application and undoubtedly the affidavits are somewhat thin in some areas but the facts which emerge to my satisfaction are that the plaintiff is committed to proceeding with his action and obtaining the evidence which is necessary to advance his case at trial and that the evidence which is required to be obtained relates to a narrow speciality and is difficult to procure and that has caused problems. My overview of the matter is that:
1.The plaintiff is committed to the action and is using his best endeavours to prepare it for presentation to the court at a trial.
2.There are difficulties in obtaining the evidence which is required.
3.The delays, although they exist, are not extreme.
4.There must necessarily be uncertainty as to when exactly the plaintiff will be in a position to fix a trial date and there is little point in programing the matter beyond the process of review from time to time at directions hearings.
Relevant law on the exercise of my discretion is found in the decision of his Honour Beech J in Lashansky v Legal Practice Board [2010] WASC 159 where his Honour stated [68] – [69]:
The first defendant's submissions identified the following statements of principle from decisions of Master Sanderson on pt 4 of O 29A.
(a)courts have generally been sympathetic in the past to a tardy litigant and have been reluctant to grant a strikeout application, but the Inactive Cases List provisions bring a new rigour to this area of practice. The court is proactive in ensuring that a case progresses with reasonable despatch, with reasonable significant and self-executing consequences for a tardy litigant: Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86 [12]; and
(b)an application for removal from the Inactive Cases List should not be regarded as mechanical. Some evidence should be advanced to show that the party is committed to advancing proceedings. Ideally, a timetable should be set, perhaps backed up by a springing order: Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 [11].
I would respectfully adopt these statements.
I also would adopt those statements.
Applying those principles to the facts in this case I consider it appropriate to remove the case from the inactive cases list and to fix a date for a directions hearing at which the progress of the matter can be reviewed and if necessary a timetable imposed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JC
REGISTRAR'S ASSOCIATE
26 APRIL 2018