Cattanach v Hamilton

[1999] QCA 357

IN THE COURT OF APPEAL	[1999] QCA 357
SUPREME COURT OF QUEENSLAND

Appeal No 10602 of 1998

Brisbane

Before McPherson JA
White J
Douglas J

[Cattanach v Hamilton]

BETWEEN:

STEVEN CATTANACH

(Second Defendant) Appellant

AND:

ALICE HAMILTON

(Plaintiff) Respondent

FRANCIS CARMODY

(First Defendant)

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 27 August 1999

1. I agree that the appeal should be allowed to the extent and for the reasons stated by

   Douglas J. I also agree with the order as to costs of the appeal proposed by his Honour.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

   Appeal No 10602 of 1998

   Brisbane

Before McPherson JA
White J
Douglas J

[Cattanach v Hamilton]

BETWEEN:

STEVEN CATTANACH

(Second Defendant) Appellant

AND:

ALICE HAMILTON

(Plaintiff) Respondent

FRANCIS CARMODY

(First Defendant)

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 27 August 1999

1. I have read the reasons for judgment of Douglas J and agree with him that the appeal should

   be allowed in part so as to preclude the appellant from being joined in the action insofar as it relates

   to a claim against him for damages with respect to personal injuries.

2. I agree with the order proposed by his Honour as to costs.

IN THE COURT OF APPEAL	99.357
SUPREME COURT OF QUEENSLAND

Appeal No 10602 of 1998

Brisbane

[Cattanach v Hamilton]

BETWEEN:

STEVEN CATTANACH

(Second Defendant) Appellant

AND:  ALICE HAMILTON

(Plaintiff) Respondent

FRANCIS CARMODY

(First Defendant)

McPherson JA
White J

Douglas J

Judgment delivered 27 August 1999.

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL ALLOWED TO THE EXTENT THAT THE APPELLANT NOT BE JOINED
AS A DEFENDANT TO A CLAIM FOR DAMAGES IN RESPECT OF PERSONAL
INJURIES.
RESPONDENT TO PAY ONE HALF OF THE APPELLANT’S COSTS OF APPEAL TO
BE ASSESSED.

CATCHWORDS:	TORTS - NEGLIGENCE - LIMITATION OF ACTIONS - Contracts, Torts and Personal Actions - joinder of a defendant after expiration of limitation period. Rules of Supreme Court Order 3 Rule 11. Limitation of Actions Act (Qld) 1974.
Archie v Archie [1980] Qd R 546 Allen v Bloomsbury HA [1993] 1 All ER 651 Grotherr v Marine Timbers Pty Ltd [1991] 2 Qd R 128 House v The King (1936) 55 CLR 499 Lynch v Keddell [1985] 2 Qd R 103 Lynch v Keddell (No.2) [1990] 1 Qd R 10 Veivers v Connolly [1995] 2 Qd R 326 Walkin v South Manchester Health Authority [1994] 1 WLR 132
Counsel:	Mr D H Tait for the appellant. Mr M E Eliadis for the respondent.
Solicitors:	Flower & Hart for the appellant. Carew & Company for the respondent.
Hearing Date:	20 July 1999.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 10602 of 1998

Brisbane

Before McPherson JA
White J
Douglas J

[Cattanach v Hamilton]

BETWEEN:

STEVEN CATTANACH

(Second Defendant) Appellant

AND:  ALICE HAMILTON

(Plaintiff) Respondent

FRANCIS CARMODY

(First Defendant)

REASONS FOR JUDGMENT - DOUGLAS J

Judgment delivered 27 August 1999

1. The appellant/second defendant appeals against a decision of a chamber judge given on 19

   October 1998 where the chamber judge ordered:

“(i)	that the second defendant be joined as a defendant to this action;
(ii)	that the joinder of a second defendant be deemed to have been made on 19 August 1996; and
(iii)	that the plaintiff have leave to amend the writ of summons and the statement of claim in this action so as to add the second defendant as a defendant.”

1. The appellant is an obstetrician and gynaecologist who cared for the plaintiff who is a

   woman who gave birth to a child with Down’s Syndrome on 1 February 1994. The appellant was

   originally a party to the action but the respondent/plaintiff discontinued against him on 16 December

   1997 before a defence was delivered by him.

2. A relevant chronology is as follows:

1.9.64	Date of birth of Respondent/Plaintiff
10.9.93	Date of ultrasound
1.2.94	Date of birth of Plaintiff’s child
19.8.96	Writ issued
24.8.96	Writ served on First Defendant
26.8.96	Writ served on Respondent/Second Defendant
2.9.96	Entry of Appearance filed by both Defendants
31.12.96	Limitation period expires for claim for damages in respect of personal

injuries.

13.2.97	Plaintiff’s solicitor informed the Second Defendant’s solicitors that the
Plaintiff intended to discontinue
5.3.97	Statement of Claim delivered - allegations against First Defendant only
26.9.97	Defence of First Defendant delivered
16.12.97	Plaintiff formally discontinued against Second Defendant
21.8.98	Summons filed
19.10.98	Orders made

1. The damages claimed in the action fall under two broad headings namely:

• damages in respect of personal injury suffered by the respondent; and

• damages for economic loss.

1. The decision to discontinue against the appellant was not taken lightly. It was done on

   advice from counsel and it is now suggested that that decision may have been incorrect and that a

   sustainable claim against the appellant can be made out.

2. The application to join the appellant was one made pursuant to Rules of Supreme Court

   O3.r11 which provides the court with a discretion to allow the joinder of a defendant after the

   expiration of a limitation period where there are “peculiar” or “special” circumstances. The effect

   of a joinder out of time at least with respect to the claim for damages in respect of personal injuries

   has the effect of depriving the appellant of a defence based upon the Limitation of Actions Act

   (Qld) 1974. Whilst the earlier authorities were conflicting, it is now clear the circumstances must

   be “peculiar” or “special” having regard to the relief sought being, in this case, the joinder of a party

   out of time with a denial of the limitations defence. See generally Lynch v Keddell (No.2) [1990]

   1 Qd R 10; Lynch v Keddell [1985] 2 Qd R 103; Archie v Archie [1980] Qd R 546 and

   Grotherr v Maritime Timbers Pty Ltd [1991] 2 Qd R 128.

3. It is necessary then to consider the discretion exercised by the learned chamber judge by

   reference to the two heads of damage claimed by the respondent. In Allen v Bloomsbury HA

   [1993] 1 All ER 651 at 658 Brooke J identified two heads of loss in cases such as this: the first is

   “a claim for damages for personal injuries during the period leading up to the delivery of the child”

   and the second is the claim for “economic loss involved in the expense of losing paid employment

   and the obligation of having to pay for the upkeep and care of an unwanted child”.

4. The existence of a claim for damages for economic loss was recognised by de Jersey J (as

   he then was) in Veivers v Connolly [1995] 2 Qd R 326. But see however Walkin v South

   Manchester Health Authority [1994] 1 WLR 132 where the English Court of Appeal thought that

   such a cause of action is not available.

5. It is necessary to consider whether the learned trial judge erred in his discretion in joining

   the appellant as a defendant in the action with respect to each head of damage. As to the claim for

   damages for economic loss it is not necessary to decide here whether such a claim is available. In

   that case the respondent/plaintiff is still in time to issue proceedings in the appropriate forum for

   those damages. However, as to the claim for damages in respect of personal injuries she is not.

   In my view, having regard to authorities such as House v The King (1936) 55 CLR 499 at 504-

   505 the learned trial judge erred in failing to properly take into account the fact that the respondent

   had advisedly discontinued proceedings against the appellant in respect of a claim for damages in

   respect of personal injuries and also that the effect of the joinder would be to deprive the appellant

   of a limitation defence. In my respectful view there was nothing “special” or “peculiar” shown to

   justify the joinder of the appellant.

6. In my view the appeal should be allowed to the extent that the joinder of the appellant as

   a defendant in the action not include a claim for damages in respect of personal injuries.

7. The appellant has been partly successful in this appeal. In my view the respondent should

   be ordered to pay one half of the appellant’s costs of the appeal to be assessed.