Brown v Australasian Correctional Management Pty Ltd

[2000] QSC 419

[2000] QSC 419

THE SUPREME COURT

OF QUEENSLAND

CIVIL JURISDICTION  No. 7587 of 1998

BETWEEN:

CAMERON STEWART BROWN

Respondent (Plaintiff)

AND:

AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD (ACN 051 130 600)

(First Defendant)

AND:

QUEENSLAND CORRECTIONAL SERVICES COMMISSION

(Second Defendant)

AND:

DR WILLIAM JOHN KINGSWELD

(Third Defendant)

AND:

DR PETER HUGH NEILL MORTON

Applicant (Fourth Defendant)

AND:

DR PETER GAEGANO FARO

(Fifth Defendant)

AND:

THE STATE OF QUEENSLAND

Applicant (Sixth Defendant)

REASONS FOR JUDGMENT

B.W. Ambrose J.

Delivered the            Tenth day of November 2000

1. This is an application by the fourth and sixth defendants for summary judgment against the plaintiff.

1. The other defendants in effect simply abide the order of the court and make no submissions.

1. The plaintiff sues the defendants including the two applicants who seek in effect to have his action struck out in respect of the negligent administration to him of a drug while he was confined to the John Oxley Memorial Hospital.  At the time he was receiving psychiatric treatment in that hospital and he asserts that in the course of treatment he was in effect administered a significantly greater dosage of drugs than should have been administered and as a consequence he has suffered lasting and permanent disability.

1. It is the case for the two applicants that all the records indicate that he was not administered a dosage in excess of that required for his proper treatment and that in any event if he had been administered as much of the drug as he asserts was administered it would not have produced the condition of which he complains.  It is further asserted on behalf of the defendants that reference to the psychiatric history of the plaintiff – who received treatment for his condition over a significant period of time - suggests that, to put it mildly, he is an unreliable person.

1. Stated shortly it is the contention of the applicants that upon expert medical opinion they advance and reference to hospital records, firstly the plaintiff probably did not receive the dosage of drugs he asserts and secondly that any over-dosage of the particular drug administered would not in any event have produced the disability in respect of which he brings his action.

1. Two medical reports were advanced by the applicants to support their contention that it is quite unlikely that the plaintiff could establish a breach of any duty owed to him or that any disability from which he suffers is attributable to any over-dosage of drugs that may have been effected.  Reports from the fourth defendant/applicant and from a Dr Khoo have been referred to to support the unlikelihood of the plaintiff succeeding in his action.

1. Stated shortly it is the applicants’ contention that the onus is really on the plaintiff to produce a psychiatric report contradicting or at least questioning the reports obtained by the defendants from Dr Morton and Dr Khoo.  It is asserted that unless upon trial the plaintiff were to produce such evidence it is so unlikely that he could succeed in his action that it should be struck out.  It is asserted that the material placed before me upon this application is such that if it is not contradicted by other expert evidence upon the application then the defendants should obtain summary judgment against the plaintiff.

1. It is the contention of the applicants that the function of Rule 293 under which the application is made is “to weed out unmeritorious claims”.

1. In my view Rule 293 was not designed to facilitate a pre-trial preliminary hearing of the merits of a plaintiff’s case.

1. In my view to a significant extent the terms of the medical reports upon which the applicants rely are argumentative.

1. It is the applicant’s contention that under Rule 293 where defendants bring an application for summary judgment supported by some evidence which if accepted at trial would lead to the plaintiff’s failure in his action, the plaintiff is under an obligation then to lead some evidence upon the summary judgment application which if accepted in preference to that of the defendants might lead to his success in his action.  It was conceded in effect that upon the leading of such evidence by the plaintiff an application for summary judgment must fail.  It is contended that the defendants’ application for summary judgment imposes an onus on a plaintiff to place before the court some evidence which might arguably lead to his success in his action to avoid having it struck out.

1. It was pointed out for the applicants that to date the plaintiff had not disclosed any expert reports which might support his case and it was conceded that if any had been disclosed this application would not have been made.  It is contended that the failure to obtain psychiatric reports to be used upon the hearing of the case to date is itself sufficient justification to strike the plaintiff’s action out – particularly in the light of the expert reports adduced by the defendants upon the application.

1. In effect the applicants seek to use Rule 293 for the purpose of striking out the plaintiff’s action.  It is clear that such an order should only be made in exceptional cases and in this respect I refer to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ.

1. It would be unhelpful for me to analyse in detail the two medical reports upon which the applicants rely.  It suffices to observe that Dr Morton says that a dosage of 250 milligrams of a specified drug would not cause problems of the sort which the plaintiff alleges he suffered as a consequence of administration of such a quantity whereas Dr Khoo asserts that there would be severe side effects from the administration of such a dosage.

1. The bottom line of the assertions of the applicants as to the unreliability of the case for the plaintiff that he was administered 250 milligrams, is that record books kept by the hospital as to the dosage of drugs administered to the plaintiff do not support his contention.

1. In my view the matters raised by the applicants are essentially matters of fact which ought to be determined in the ordinary way upon trial.

1. No authority was cited which deals with the obligation on a plaintiff on a defendant’s application for summary judgment to lead evidence on issues pleaded to show that on the facts he has an arguable case.

1. At the conclusion of the hearing of the application it was contended on behalf of the applicants that even if the plaintiff’s evidence were accepted at trial that 250 milligrams of the specified drug was administered to him that fact “would not entitle the plaintiff to succeed and he will still lose on the evidence”.  The problem with such a contention of course is that he may well be able to call psychiatric evidence or other expert medical opinion to contradict the views and opinions of Dr Morton and Dr Khoo expressed in the reports advanced upon the application.  The real question is whether he is obliged to place such medical reports or opinions before me on a summary judgment application by the defendants to establish a “triable issue” of fact to avoid having his action struck out.

1. In my view such an approach is contrary to the well established cases for dismissing a plaintiff’s action which is to be found in General Steel Industries Inc (supra).

1. This is a case which in my view ought be finally determined as promptly as possible.

1. There should be full disclosure made and interrogation if any completed promptly.  The matter ought then be set down for trial promptly with directions given requiring the disclosure of all psychiatric reports and other medical reports to be used upon the trial to be effected within a nominated time.

1. At the present stage of preparation for trial however it is my view that it is inappropriate to enter judgment against the plaintiff upon the uncontradicted evidence of the defendants which would have the effect of striking his action out.

1. I therefore dismiss the application.  I order that the cost of the application be the plaintiff’s costs in the cause.