Cowie v Quinn - [2019] SADC 71

District Court of South Australia
(Civil: Minor Civil Review)
COWIE v QUINN
[2019] SADC 71
Judgment of Her Honour Judge Deuter (ex tempore)
16 May 2019
MAGISTRATES - APPEAL AND REVIEW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS
A review from the ex tempore decision of the Magistrate dismissing a claim in medical negligence and awarding costs to the defendant in the sum of $800
Held:
(1) The plaintiff has not proved that the defendant was negligent in performing a medical procedure.
(2) The plaintiff has not suffered loss and damage that is compensable pursuant to the Civil Liability Act 1936.
(3) The defendant was not entitled to costs as awarded, as these were not legal costs but loss of income from his medical practice.
(4) That the defendant repay the plaintiff the sum of $800 and there be no order as to costs.
Magistrates Court Act 1991 s38; Civil Liability Act 1936 s62; s64; District Court Rules R279A; R117, referred to.
Yates v Police [2000] SASC 326; Harradine v District Court of South Australia [2012] SASC 96; Lyons v Legalese Pty Ltd (2) [2017] SASC 2; Marmandis v Germein (2) [2017] SASC 114; Cachia v Haines [1994] 179 CLR 403, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"COSTS - MEDICAL NEGLIGENCE - INFORMED CONSENT - CAUSATION - DAMAGES"

COWIE v QUINN
[2019] SADC 71
Introduction

This is an application to review a decision delivered ex tempore in the Elizabeth Magistrates Court on 9 November 2018 dismissing a claim in medical negligence and awarding costs of $800 to the defendant. For ease of reference, I will refer to the parties by the designations applied to them at the trial.
The defendant, brings an application for the review of the decision made by the Magistrate in relation to costs. The plaintiff brings a cross-application to review the dismissal of his claim.
The minor civil claim
The Magistrates court proceedings were commenced on 25 June 2018 with the plaintiff claiming damages of $4,850 plus costs in relation to personal injury he alleges was caused by the defendant in performing a cryotherapy procedure, being the use of liquid nitrogen, to remove some keratosis on his bottom lip (“the procedure”) on 19 March 2018.
The key allegation made by the plaintiff was that he suffered a severe reaction to the procedure, and that if he had been fully informed by the defendant of the possibility of such a reaction he would not have proceeded with the procedure on that day.
The plaintiff pleaded that the defendant did not seek or obtain consent to perform the procedure; did not explain the nature of the procedure; and did not explain the after effects of the procedure.
The defendant’s defence relied upon a letter that he had sent to the plaintiff on 21 April 2018 and which was attached to his defence filed in the Magistrates Court on 13 July 2018. What I have distilled from that detailed letter is that the defendant’s case was:
(1)that the plaintiff’s reaction to the procedure was severe, and one he had never seen before in thousands of procedures he had performed generally, and in over 100 that he had performed on the lips. He had also never heard of such a severe reaction occurring;
(2)that the reaction was delayed, and did not occur until 17 days after the procedure, and therefore could not have been caused by the procedure but was more likely caused by an unrelated illness such as a virus;
(3)as he had never previously seen or heard of such a late reaction he was not able to warn of it occurring, although he could not recall what exact warning was provided to the plaintiff;
(4)his normal practice in over thousands of procedures was to advise of some pain, burning and blistering to the treated area that would resolve within 7 days.
The decision of the Magistrate handed down ex tempore, after hearing evidence from the defendant, the plaintiff and the plaintiff’s general practitioner Dr George, who had consulted with the plaintiff on 5 April 2018.
The Magistrate found that the plaintiff had not proved his case on liability or damages. Full reasons for that finding were not given. The plaintiff’s claim was dismissed. The Magistrate then made an order for costs to be paid to the defendant in the sum of $800, being for two hours of his professional time whilst in court. This was stated to be at his usual rate of $400 per hour. No evidence was provided to support that hourly rate. I have been told today that the plaintiff has paid the defendant the sum of $800.
The application and cross-application for review
The defendant’s application for review relates to the order for costs. As the successful party at trial, he sought full payment of his lost income by way of time away from his medical practice in in defending the action commenced by the plaintiff. He maintains this claim on his application for review. The loss is calculated at $9,625.00. The defendant also claims the lost time of his wife, calculated at $560.00. He therefore claims a total of $10,185.00.
The plaintiff’s cross-application seeks review of the order of the Magistrate dismissing his claim. The plaintiff raises concerns regarding the fairness of the trial and reiterates his position regarding failure by the defendant to provide full information and obtain his consent in relation to the cryotherapy procedure. In his written submissions and today before me the plaintiff confirms his evidence at trial, namely, that when he attended upon the defendant on 19 March 2018 for a general skin check, he did not provide consent for the procedure.
The application and cross-application are both brought pursuant to s.38 of the Magistrates Court Act 1991 and R.279A of the District Court Rules.
Extension of time to file Application
The application was filed out of time. Rule 279A (2) of the District Court Rules provides that an application for review must be commenced within 21 calendar days after the date of the judgment subject to review. By R.279A (6) a cross-notice seeking review of the judgment or decision must be filed within 14 calendar days of service of the Application to Review.
The defendant’s application to review was not filed until 14 January 2019. The time for review expired on 1 December 2018. There was the intervening Christmas period but this meant that the application to review was some 44 days out of time.
At paragraph 5 of his application the defendant applied for an extension of time to bring his application stating that:
(1)     Initially he was unaware that he could appeal;
(2)     That when he attended at the Elizabeth Magistrates Court he was      asked to provide an affidavit and interlocutory application;
(3)     On presenting these forms he was told to go to the Supreme Court;
(4)     The Supreme Court was closed over the Christmas period leading to       further delay;
(5)     He was sent to the District Court to file the documents.
The application for review was not served upon the plaintiff until 9 February 2019. Thereafter the plaintiff filed his cross-application for review on 18 February 2019 which is within the 14-day time limit set out in R.279A (6). Although strictly within time, at paragraph 5 of his cross application the plaintiff states that he was seeking an extension as at the trial on 9 November 2018 the Magistrate stated that the decision could not be appealed. This supports the defendant’s position as set out in his application for review.
Before proceeding further, I must determine whether to grant an extension of time to the defendant for the bringing of these proceedings.
The power to dispense with compliance with a rule and to extend or reduce the time for taking a step in any proceeding is contained in R.117 of the District Court Rules.
Justice Lander in the case of Yates v Police[1] noted that the discretion to extend the time for compliance exists for the sole purpose of doing justice between the parties.
[1] [2000] SASC 326.
Although there is no unqualified right to an extension of time, I note that this matter is a minor civil claim and that neither party has engaged legal representation. I have reviewed the transcript of the proceedings before the Magistrate in the Elizabeth Magistrates Court on 9 November 2018 and there was no indication at the end of proceedings that the rulings were anything other than final.
In concluding the matter his Honour noted in relation to the parties as follows:
You could have proceeded like all other people. I think that this case has gone on far too long and I do believe that you are pursuing the defendant unnecessarily. Having listened to both of you this could go on forever I suspect until there is finality. The plaintiff, it doesn’t matter how tenacious you are and how much you believe in your cause you have not proved that the cryotherapy has caused your injury but even if it did, you cannot show me that the amounts that you have claimed are legitimate …… I am not satisfied that either you have made out the cause of action or the head of damages so I am going to strike out your claim.
….. the question of costs. Costs are usually nominal or nominal in small claims but I would be happy to hear from you the defendant but just be mindful of that fact are you seeking costs?[2]
[2] TX page 32 lines 12-33
Orders were then made for the payment of costs by the unsuccessful plaintiff.
In my view Magistrate was indicating to the parties that he was making a final decision in relation to the matter. There was no indication at that stage that either of them could bring a review of his decision.
Both parties filed written submissions and attended court before me, to speak to those submissions. In the circumstances of a minor civil action where both parties are unsatisfied with the judgment, I considered that the interest of justice required that I extend the time for the bringing of the application for review.
The nature of the review
I now turn to the application and counter-application. The principles in relation to such applications were set out by the Supreme Court in the matter of Harradine v District Court of South Australia.[3]In that decision, Justice Blue noted that the review is not in the nature of an appeal, and that the court is entitled to have regard to the evidence adduced before the Magistrate or may re-hear evidence if that is necessary. However, the review is not a complete rehearing and the court may inform itself as it thinks fit. The court must act according to the substantial merits of the case and the law in relation to the facts of the case.
[3] [2012] SASC 96
As I indicated to the parties before me this means I can consider the matter afresh, taking into account the applicable legal principles, even if they were not considered or referred to by the Magistrate.
The Defendant’s Application
In my view, this principle applies to the defendant’s claim for costs. As I indicated to the parties there is no legal basis for that claim.
Justice Hinton has recently considered this issue in two decisions being Lyons v Legalese Pty Ltd (2)[4] and Marmandis v Germein (2).[5]In those decisions it was noted that:
It is settled that costs are compensatory in nature and are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings and not by way of punishment of the unsuccessful party.
…. The party in whose favour an award of costs is made is compensated for work done or expenses incurred by their lawyers or persons working for their lawyers and not for loss more generally.[6]
[4] [2017] SASC 2
[5] [2017] SASC 114
[6] see Lyons v Legalese at para [6].
Justice Hinton went on to find that where a party is not legally represented they can only recover out of pocket expenses such as paid court fees, in defending proceedings, and he expressly stated that such expenses do not include compensation for their own time spent in connection with the case. He noted that this confirmed the position of the High Court in Cachia v Haines.[7]
[7] [1994] 179 CLR 403
The defendant is seeking an order that there be an increased amount of costs paid to him to compensate him for his time spent in connection with defending the case brought by the plaintiff in the Magistrates Court. That application must fail.
I find that the defendant is not entitled to an order by which he is compensated for his loss of income or personal expenses in defending the claim brought by the plaintiff.
I also find that the order made by the Magistrate that the plaintiff pay the defendant’s costs, being for 2 hours away from his practice to defend the claim (fixed at $800) was wrong and I rescind that order.
As I have noted above, payment has been made by the plaintiff of that sum of $800. I therefore make an order that the defendant repay the sum of $800 to the plaintiff, within 28 days of this order being served upon him.
The plaintiff’s cross- application
The Plaintiff seeks review of the order made by the Magistrate dismissing his claim. He pursues his application for damages upon the basis set out in his initial claim, as outlined above. The plaintiff in this court again put his case very strongly that the defendant never sought his consent for the procedure, and did not explain to him the severe after effects of that procedure.
He repeats his evidence given before the Magistrate that after the procedure his lips became very sore, swollen, ulcerated and extremely painful. He also sets out how, when he saw his GP Dr George on 5 April he was informed by him that a biopsy should have been done before any burning of the spots off the lips. He repeated his claim that when he and his wife went on their holiday interstate on 6 April 2018 his lips were extremely painful and so badly ulcerated that he spent much of the holiday in his hotel room, struggling to eat due to the lips being sore, cracked bleeding and swollen. Upon returning from holiday he claims that he was unable to work for the following two weeks (16 April – 27 April) due to the ongoing pain, ulceration and cracking of his lips.
The plaintiff both in his written submissions and in court before me relied upon the defendant’s progress notes for the plaintiff that had been tendered at trial. He pointed out that these do not contain any written record confirming consent being given, or any detail of discussions with the plaintiff regarding the cryotherapy procedure. That is, he makes the submission that there is no written record of an informed consent for the procedure.
In his evidence at trial the plaintiff stated how he was going on holiday, as a second honeymoon, on 6 April 2018, 18 days after the procedure. He gave evidence before the Magistrate and confirmed to me that if he had been warned of the reaction that he ultimately suffered he would not have consented to, or proceeded with, the procedure. The plaintiff’s submission to me, confirming his evidence in the Magistrates Court, was that he would have undergone the procedure at some stage in the future given the sun damage to his lips, but not so close to his holiday.
In his application to review and in the hearing today, the plaintiff maintains his claim in damages. These were for the loss of enjoyment of his holiday, being non-economic loss (or pain and suffering) at $2,500 and loss of wages for two weeks’ work at $2,000. There is an additional claim for travelling costs and expenses taking the total to $4,850.
In the Magistrates Court, the plaintiff gave evidence of the extreme pain and burning sensation that he suffered in his lips following the procedure. I accept that evidence, as it is not contradicted. It is also supported by the evidence of Dr George in relation to his consultation with the plaintiff on 5 April 2018. At that time, the plaintiff was experiencing pain and burning of the lips. He prescribed pain relieving medication for this.
However, Dr George also gave evidence that at the time he consulted with the plaintiff there was
definitely no blistering and definitely no ulceration there. I just saw the scaling, that’s the lips that gets scaled that’s all, but the main symptom at the time was severe burning in the lips.[8]
[8] TX page 25 lines 9-16.
By his evidence Dr George confirmed that 17 days had elapsed between the date of the procedure and the date that he reviewed the plaintiff. He confirmed to the Magistrate that at that stage there were no blisters.[9] He confirmed that blistering of the lips (caused by the cryotherapy procedure) should have occurred by that time.[10]
[9] TX page 26 line 11.
[10] TX page 26 line 29.
Dr George also conceded that it was “pretty unusual to get blistering after the seventeenth day” from a cryotherapy procedure.[11]
[11] TX page 27 line 30.
Giving his evidence in the Magistrates Court, the defendant maintained the position that in his medical opinion the plaintiff’s severe reaction was a quite separate illness. He stated
I did a little search on the computer but I estimate I’ve sprayed faces 15,000 times over the last ten years and I would have sprayed several hundred lower lips in the last ten years. I’ve never seen anything like this. I never warned people that it could take longer than a week to clear up and I’ve never seen anyone develop an illness like this after having cryotherapy.[12]
[12] TX page 22 lines 8-15.
It is clear from the evidence that both Dr George and the defendant had never witnessed or been involved in a case when ulceration or blistering of the lips first occurred more than17 days after a cryotherapy procedure. However, Dr George did not accept that the plaintiff was suffering from a virus when he reviewed him on 5 April 2018.
The Magistrate made no finding as to whether the cause of the plaintiff’s blistering and ulceration of his lips was a viral illness, however he found that there was no proven connection between the defendant’s procedure and what occurred to the plaintiff’s lips.
He relied upon the evidence of Dr George that there was no blistering when he saw the plaintiff on 5 April, and that no blistering had occurred between the date of the procedure and Dr George’s review. This was critical, given the evidence that this had never been seen before and was considered unusual. He went on to find, that without proving the link between the cryotherapy and the reported severe damage to the lips, the plaintiff’s case must fail.
In reviewing that finding, I accept the evidence given by the plaintiff of extreme pain suffered after the cryotherapy procedure, including the burning sensation to his lips. That evidence is not contradicted and is supported by the evidence of Dr George. However, the clear evidence of the plaintiff and Dr George was that the blistering and ulceration of the lips did not occur until a time beyond 17 days after the procedure. The plaintiff confirmed that to me today. I have seen the photographs that were produced at the trial said to have been taken on the plaintiff’s holiday, that commenced on 6 April 2018. I accept that these show some damage to the plaintiff’s bottom lip. I cannot assess from those photographs the extent of that damage. In any event that is damage present some 18 days after the procedure.
Although I accept that the plaintiff did suffer the symptoms that he gave evidence of at the trial and that he told me about today, he must prove on the balance of probabilities that his injury and any damages that flow from that was caused by the cryotherapy procedure.
I find that the the plaintiff fails in establishing that the cause of his injury that led to the alleged loss of enjoyment of his holiday and his loss of income was the procedure performed by the defendant. These losses occurred between 6 April 2018 and 27 April 2018). That is between 18 days and 30 days after to the procedure was performed.

As I have noted above, under oath in the Magistrates Court, the only independent doctor to give evidence, Dr George, stated that he had never seen a case before where blistering occurs following cryotherapy so late after the procedure. He described this as being unusual. The evidence of Dr George confirmed the evidence given by the defendant that he had never, in his career as a trained skin specialist, been aware of such a reaction and that the usual course with cryotherapy is that blistering occurs in the first two to three days as the skin reacts immediately to the burning procedure. This blistering resolves within seven days.
I am faced with a situation where two medical practitioners, one who was the defendant in the initial proceedings, have both given evidence under oath that they have never seen such a severe late reaction to a cryotherapy procedure. In those circumstances, on the balance of probabilities, I am not satisfied that the reaction and pain and suffering that the plaintiff suffered was because of the cryotherapy procedure. I do not believe it is necessary to make a finding as to what caused that reaction.
As a result of my finding on causation, the issue of failure to provide consent falls away. The plaintiff cannot prove that the defendant was negligent in not informing him of the likelihood of a severe reaction within the time frame of his holiday, if that severe reaction was not related to or caused by the procedure.
In the high Court decision of Rosenberg v Percival[13]Justice Kirby noted that where risks of a medical procedure may be classified as immaterial, in the sense of being unimportant or very rare then they can be ignored by the treating doctor.[14]
[13] [2001] HCA 18
[14] At [149]
In this matter that is the case, as neither Dr George or the defendant had seen or heard of a case where a cryotherapy procedure did not cause any blistering for a period of more than 17 days. It was not something that the defendant could warn of, as he was not aware that it could occur. I find that the plaintiff has not met the burden required at law to establish causation and negligence.
Damages
Further to the above, as I raised in court today, even if there was a finding if negligence against the defendant, I find that the plaintiff, does not make out his claim in damages.
Damages for personal injury are governed in South Australia by the Civil Liability Act 1936 (the CLA). Amendments to that CLA have limited damages awarded to plaintiffs for pain and suffering and economic loss.
In relation to damages for non-economic loss (pain and suffering), section 52 (1) of the CLA provides that:
Damages may only be awarded for non-economic loss if–
(a)the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or
(b)medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.
Section 52(1) provides a threshold that plaintiffs must meet before damages can be awarded for pain and suffering.
In relation to those two thresholds, I note that when s52(1) was introduced in 2002 for all actions in negligence the “prescribed minimum” for medical expenses was $2,750.[15] Between 2002 and 2018 that prescribed minimum is to bear to $2,750 the same proportion as the consumer price index for the September quarter of the preceding year bears to the consumer price index for the September quarter 2001 (section 3 of the CLA).
[15] Section 52(1)(b) of the CLA
I have not completed the calculation of what the prescribed minimum would have been at the time of the plaintiff’s injury in 2018. He indicated before me today that his medical expenses in relation to his injury were minimal and well under $1,000. He does not meet the threshold in relation to medical expenses.
In relation to the threshold set out in section 52(1)(a) of the CLA, I do not find that the plaintiff’s ability to lead a normal life was “significantly impaired” by the injury to his lips for a period of at least seven days.
While I accept that the plaintiff suffered pain and suffering and that he needed medical treatment, he acknowledges that he did go on holiday to Queensland and that, in seeking damages for pain and suffering he is seeking damages for loss of enjoyment of that holiday. He confirmed in his evidence in the Magistrates Court that although he had suffered a loss of enjoyment of his holiday in that he was in pain and had trouble eating, he did not stay in his hotel room every day of his holiday.
The threshold that a plaintiff must be “significantly impaired by the injury” for a period of seven days is a high threshold to meet. I find that the plaintiff has not met that threshold in relation to non-economic loss. He could travel to Queensland on his holiday. He suffered some pain and suffering while on that holiday, he did not enjoy it to its fullest. The use of the word “significant” was provided to place a barrier that must be scaled for a plaintiff to obtain damages. The Oxford Dictionary defines the word “significant” as meaning noteworthy or of great importance. I find that while the plaintiff was not significantly impaired by any injury to his lips for a period of at least seven days. I have not been able to find any previous decision where a person with an injury to his lips consisting of some pain, blistering and ulceration has been awarded damages for pain and suffering pursuant to the provisions of the CLA.
In relation to the plaintiff’s claim for economic loss, I note that by section 54(1) of the CLA, damages for economic loss are not to be awarded for loss of earning capacity in respect of the first week of incapacity. This means, in relation to the plaintiff’s claim, that he would only be entitled to claim damages for the second week of his claimed two weeks of loss.
Before me today, the plaintiff has confirmed his evidence at trial, that at the time of his injury he was a retired or semi-retired as a plumber. He only performed some odd jobs. He told me today that he had received a verbal quote for a job that he was unable to perform that job because of the injury to his lips.
I have no evidence before me of this quotation or the likelihood of the plaintiff performing that work in any event. When asked, the plaintiff told me that he had no evidence of loss of earnings and was not able to provide tax returns for previous years or for 2018 to establish any earnings at the time of the injury. In the circumstances, I find that the plaintiff has not proved on the balance of probabilities that he has suffered any loss of earning capacity or loss of income.
My finding is that the plaintiff has not proved any loss or damages for which he could be compensated pursuant to the procedure and his claim must fail on both liability and quantum. As such the cross-application must fail.