Cornell v Knezevic

[2001] WADC 161

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CORNELL -v- KNEZEVIC & ORS [2001] WADC 161

CORAM:   REGISTRAR KINGSLEY

HEARD:   16 MAY 2001

DELIVERED          :   3 JULY 2001

FILE NO/S:   CIV 2162 of 1996

BETWEEN:   JEANNENE MERSHELLE CORNELL

Plaintiff

AND

WALLY KNEZEVIC
First Defendant

RICHARD ANDREW CLUGSTON
Second Defendant

ST JOHN OF GOD HEALTH CARE SYSTEM INC (ARBN 051 960 911)
Third Defendant

KEITH VICTOR WOOLLARD
Fourth Defendant

Catchwords:

Practice - Application to file a substituted statement of claim - Defendant's claim of prejudice through delay

Legislation:

Fatal Accidents Act

Law Reform (Miscellaneous Provision) Act 1941

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr B Nugawela

First Defendant             :     Mr D Bourke

Second Defendant         :     Mr D Bourke

Third Defendant           :     Ms J Thornton

Fourth Defendant          :     Mr D Bourke

Solicitors:

Plaintiff:     D'Angelo & Partners

First Defendant             :     Clayton Utz

Second Defendant         :     Clayton Utz

Third Defendant           :     Freehills

Fourth Defendant          :     Clayton Utz

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

Baume v Commonwealth (1906) 4 CLR 97

Hughes v Gales (1995) 14 WAR 434

State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1995) 13 WAR 323

West Coast Clothing Co Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA;  Library No 940482; 7 September 1994

Case(s) also cited:

Edwards & Or v The Queen, unreported; SCt of WA; Library No 970030; 6 February 1997

Shtun v Zalejska [1996] 3 All ER 411

1. REGISTRAR KINGSLEY:  The plaintiff seeks leave to file a substituted statement of claim.  The third defendant opposes the plaintiff's application on the basis that the plaintiff has failed to progress the action expeditiously and that new causes of action are alleged against the third defendant.

2. The events the subject of the proceedings arose in July 1995.  The writ was filed in July of 1996 and served on the third defendant in May 1997.  The third defendant filed a defence in July 1997.  The matter was entered for trial in December 1998 and a pre-trial conference scheduled in April 1999.  Whilst there were some difficulties in relation to the provision of expert evidence, the matter went off to a listing conference in December 1999.  At the listing conference the Principal Registrar ordered there be a further pre-trial conference.

3. There the matter seems to have laid in abeyance until the plaintiff's application of 12 March 2001.

4. The plaintiff's action is brought under the Fatal Accidents Act and under the Law Reform (Miscellaneous Provisions) Act 1941.  The plaintiff, in broad terms, pleads that her husband (the deceased) was admitted as the first defendant's patient in June 1995.  He was discharged from hospital on 23 June 1995 and on 24 June 1995 suffered a seizure at home.  He was returned to the St John of God Hospital and the second defendant was consulted in relation to irregular heartbeats.  The second defendant advised the deceased should undergo an exercise ECG.  On 25 June 1995 the deceased suffered a further seizure and in the very early morning on 26 June 1995 was given a pethidine injection.  In the early afternoon of 26 June 1995 the deceased was taken to the premises of the fourth defendant and was required to perform an exercise ECG.  About an hour after the exercise ECG the deceased suffered severe heart irregularity known as ventricular tachycardia.  The deceased died on 6 July 1995 at Sir Charles Gairdner Hospital.

5. The third defendant's principal objection is to par 45 of the minute of substituted statement of claim which particularises the third defendant's breach of duties.

Principles

1. The grant or refusal of leave to amend is a matter discretion (Baume v Commonwealth (1906) 4 CLR 97). The exercise of that discretion now takes into account the principles and objects stated in Order 1 of the District Court Rules.  These rules relate to the elimination of delay and the imposition of a system of case flow management.  The principles that can be distilled from cases such as Hughes v Gales (1995) 14 WAR 434, West Coast Clothing Co Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA;  Library No 940482; 7 September 1994 and Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1995) 13 WAR 323 is that the fair and just determination of the issues is to be judged together with the goal of the elimination of unreasonable delay. Further, the principles of case flow management will not lead to refusal of leave to amend at a late stage of the proceedings where significant matters have only then emerged through no fault of the applicant.

2. Those principles were the subject of comment by Dawson, Gauldron and McHugh JJ in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. Those Justices stated that principals of case management should not be allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence thus precluding the determination between an issue between the parties.

3. The third defendant submits that new allegations are raised in par 45 of the substituted statement of claim.  These new allegations relate to failure by staff of the third defendant in exercising their professional responsibility, not taking the deceased seriously in relation to his protestations of extreme pain, inappropriately discharging the deceased, failing to take an independent history and a failure to draw to the first defendant's attention that a diagnosis was not in accordance with clinical indications.  In all the allegations against the third defendant are 19 in number.

4. Miriam Morgan-Hobbs, in an affidavit sworn 9 May 2001, deposes that the new allegations require the third defendant to locate witnesses in relation to these events.  After an elapse of four years since the writ was served on the third defendant, and almost six years since the events the subject of the claim have occurred, the third defendant is having difficulty locating relevant staff.  Morgan-Hobbs deposes that the recall of events by staff members is likely to be significantly poorer than it would have been had the allegations been made within the original statement of claim.  This issue takes on greater significance as it appears that the majority of allegations made in the particulars to par 45 are not recorded in the third defendant's medical records.  This would then require independent recall of those matters.

5. Ms Morgan-Hobbs deposes that:

   (a) the doctor who performed the emergency admission assessment has moved to Victoria and the Medical Practitioner Board of Victoria was not able to provide current contact details;

   (b)the doctor who performed the Intensive Care Unit admission on 24 June 1995 has no independent recall;

   (c)the Intensive Care nurse who completed the nursing admission on 24 June 1995 has no independent recall;

   (d)nursing staff members have no recall of communications and state that any communication regarding the deceased's condition was more likely to have been made by the medical staff member on duty; and

   (e)the medical staff member on duty was not able to be contacted.

6. I have evidence before me that a majority of the allegations, and these allegations are particularised, relate to matters not recorded in the third defendant's medical records.  In such a case of this, the quality of the recollection of the witnesses will be central to the issues relating to the third defendant's breach of duty.  The cross-examination of witnesses is bound to be directed to attacking the reliability of their recollection and the testing of that recollection by reference to other evidence that may be adduced at trial.  My task on this application is to assess the likely effect on the trial and the defendants' ability to put their case forward.  By necessity I must therefore draw inferences on whether the loss of recollection in this case imposes serious prejudice to the third defendant to the possibility of a fair trial.

7. It is clear that the third defendant, the hospital, from the pleadings has an emergency department together with an Intensive Care Unit.  The plaintiff particularises at par 38.1 that the defendant was admitted to the hospital as an emergency patient.  I can reasonably infer that the staff in the emergency department are at times busy and that, without independent records, that the staff will have difficulties in independent recollection.  The third defendant has gone beyond a generalised assertion of the dimming of memory.  The third defendant has demonstrated why it is that their witnesses will not be able to give evidence as complete as the evidence they would have been in a position to give had the allegations been raised much earlier.  In this case, in my opinion, the prejudice to the third defendant is such that it cannot be compensated by an order for costs and accordingly the fresh allegation against the third defendant will be disallowed.