Crocket v Roberts & Launceston Public Hospitals Board
[1992] TASSC 81
•18 May 1992
Serial No 29/1992
List “A”
CITATION: Crocket v Roberts & Launceston Public Hospitals Board [1992] TASSC 81; A29/1992
PARTIES: CROCKETT, DAVID JOHN
CROCKETT, LOUISE MARY by her next friend
David John Crockett
v
ROBERTS, D
THE LAUNCESTON PUBLIC HOSPITALS BOARD
THE HOBART PUBLIC HOSPITALS BOARD
THE ALFRED HOSPITAL THIRD PARTY
TITLE OF COURT: SUPREME COURT OF TASMANIA
FILE NO/S: MA 38/1991
HEARING DATE: 18 May 1992
JUDGMENT OF: Cox J
Judgment Number: A29/1992
Number of paragraphs: 29
Serial No 29/1992
List "A"
File No MA 32/1991
DAVID JOHN CROCKETT and LOUISE MARY CROCKETT BY HER NEXT FRIEND DAVID JOHN CROCKETT v. D. ROBERTS, THE LAUNCESTON PUBLIC HOSPITALS BOARD and THE HOBART PUBLIC HOSPITALS BOARD THE ALFRED HOSPITAL THIRD PARTY
REASONS FOR JUDGMENT COX J
18 May 1992
Practice – Extension of time to seek contribution from third party – Whether prejudice to respondent sole consideration – Whether prima facie case or reasonably arguable case to be demonstrated – Tortfeasors & Contributory Negligence Act 1959, s.3.
This is an appeal from the refusal of the Master of an application dated 20 April 1989 by the first and second named defendants (“the applicants”) for an order that the time limited by the Tortfeasors and Contributory Negligence Act 1959 (“the Act”), s.3, for joining in the Alfred Hospital as a third party be extended to 5 October 1988.
The Act, s.3, relevantly provides:
“(5) Notwithstanding any provisions of any enactment requiring notice of damage or injury to be given, or notice of an intended action to be given, or limiting the time within which an action may be brought, proceedings for contribution under this section may, although notice of damage or injury, or notice of an intended action, as the case may be, has not been given, or the time so limited has expired, be commenced at any time within the period of twelve months (or within such extended period as may be allowed pursuant to subsection (6) of this section) after the writ in the original action was served on the person seeking to recover contribution.
(6) A judge, commissioner of a court of requests, or justice, or any other person constituting or presiding over a court of competent jurisdiction, on the application of a person seeking to recover contribution under this section, may, in his discretion and subject to such conditions (if any) as he may impose, extend the period within which proceedings for recovery of contribution shall be commenced, notwithstanding that the period prescribed in subsection (5) of this section may have expired, if he is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension.”
The plaintiffs‘ claims against the applicants are for damages for personal injuries alleged to have been caused to the second named plaintiff by the negligence of each of the applicants. The second named plaintiff had undergone a leucotomy operation at the Alfred Hospital on or about 10 May 1983 and had been discharged therefrom on 18 May 1983. On 20 May 1983 she was admitted to the second applicant’s hospital, having developed an infection in the leucotomy wounds and thereafter developed bilateral cerebal abscesses.
The writ was served on the applicants on 23 March 1987 and the application for leave to issue the third party notice was filed on 5 October 1988. The third party raised the twelve months limitation time bar pursuant to the Act, s.3(5), on 7 April 1989, which was followed by the application to the Master. The applicants claim that they are entitled to contribution andor indemnity by reason of the negligence of the third party and its agent, a surgeon Mr. W.L. Elrick, who died on 18 July 1987, that is some eight months before the time for commencing such proceedings as of right had expired.
The Master ruled that in determining the application, the absence of prejudice to the respondent third party was not the only consideration, and that other matters for consideration were the reasonableness of the explanation for the delay and the existence of a prima facie case against the respondent. He was satisfied that so far as the criterion of delay was concerned, that factor alone should not disqualify the applicants from the relief sought. Likewise he was not satisfied “that any specific prejudice was present and of such a nature which should bar the plaintiffs [sic] ... and in my view the defendants [sic] have not shown any significant prejudice which would justify the refusal of the application on this ground”. Clearly in this context he meant the applicant defendants when he referred to “the plaintiffs” and the respondent third party when he referred to “the defendants”. However, he refused the application on the basis that on the evidence he had heard there was no reasonable possibility of the applicants sustaining a case against the respondent and that it had not reached the stage where a tribunal of fact could make a finding in favour of the applicants. He concluded by saying, “The courts will not in such circumstances allow an extension as it would be futile to do so and incur the parties in unnecessary costs”.
No real challenge was made on the hearing of the appeal to the propriety of the Master‘s assessment of the questions of delay and prejudice. It has been the last matter which the respondent submits is determinative of the application and requires its dismissal.
There are three basic issues:
1. In an application such as this, is prejudice the only relevant consideration?
2. If not, how strong a case must the applicant make out?
3. Was the applicants’ case of the required strength?
As to the first issue, the Act, s.3(6), provides that a [judge] “may, in his discretion and subject to such conditions (if any) as he may impose” extend the time “if he is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension.” The wording differs from other provisions dealing with statutory discretions to extend time where the three considerations of the strength of the case, reasons for delay and prejudice have been accepted as relevant. In, for example, the Limitation Acts 1965 and 1975 the power was exercisable if the judge “thinks that in all the circumstances of the case it is just and reasonable to do so”. Under the Workers‘ Compensation Act 1927 (s.9(8)) the time within which proceedings independently of that Act might be brought could be extended if the judge thought fit for such period not exceeding twelve months as the judge might think necessary. Under the Traffic Act 1925, s.65A(3), power was given to the court to extend the time for giving notice to the Attorney–General of intention to make a claim against the Nominal Defendant where the identity of a negligently driven motor car could not be established. The words there were “the court may, after hearing such of the persons affected or likely to be affected by the application as it thinks fit, extend the time ...”.
In Laycock v. Jac Hendricks Pty. Ltd. Unreported 101963, Master Brettingham–Moore (as he then was) considered whether the discretion given by the Act, s.3(6), required him only to consider the question of prejudice to the respondent and excluded consideration of other factors such as any fault on the part of the applicant. He said:
“If I am not satisfied that the second defendant will not be prejudiced, I cannot extend the time. But if I am so satisfied, then it seems to me that I may still exercise my discretion against [the applicant] if it is just to do so. In this respect I cannot see that there is any difference in principle between the statutory provisions now under consideration and Section 9 (8) of the Workers Compensation Act and Section 65A (3) of the Traffic Act. It is a matter of the justice of the case.”
10. In the case of Harris v. Hannibal Unreported 131973, Burbury C.J. had a similar application. He did not specifically address the issue of the strength of the applicant’s case but did hold that the applicant had established a reasonable explanation for his failure to take third party proceedings within the prescribed time.
11. Where, as here, the judge is entrusted with a discretion exercisable, subject to such conditions (if any) as he may impose, if he is satisfied the proposed respondent will not be prejudiced in his defence, that discretion must still be exercised judicially and in such a way as to meet the justice of the situation as the court perceives it. There is no good reason why, if the condition that he be satisfied the respondent will not be so prejudiced is fulfilled he should automatically grant an extension of time, his discretion being confined to specifying the appropriate conditions. That would effectively deny the existence of the discretion to grant the extension and rob the word “may” of any meaning. In my opinion the discretion may only be exercised notwithstanding the absence of prejudice to the respondent if the justice of the case so requires. This in turn calls for a consideration of those matters including the strength of the case and the reasons for delay which have now become recognized as relevant to extensions of time under other statutes conferring a discretionary judgment by the court.
12. I move then to the second question I have posed. What strength must the applicant show his case has in order to procure the favourable exercise of the discretion? It is often compendiously said that the applicant should establish that he has a prima facie case, but this may be a misnomer when, in the nature of things, the applicant cannot be expected to present as complete a case on the hearing of the application as he would be expected to do on trial. Indeed, the difference between making out a prima facie case on trial and having the matter withdrawn from the jury‘s consideration may lie in the procuring of materials by way of the processes of discovery and interrogatories of which the applicant may not be able to avail himself until he is given leave to institute his proceedings.
13. In a case under the Workers Compensation legislation (Gerke v. Comalco Aluminium (Bell Bay) Ltd. Unreported No.1081965) Gibson J. said:
“If the applicant, not seeking to bring an action that is clearly frivolous, has a reasonable excuse for the delay and the delay is not unreasonably long, and if there is no particular prejudice to the respondent beyond what is involved in a mere lapse of time, it is just that I should grant the extension.”
14. In Marton v. Concrete Industries (Tas.) Pty. Ltd. Unreported No.31964, Neasey J. said, at p.8, after adverting to other considerations such as prejudice and ignorance of the law:
“A further question of importance is the extent to which the facts of the particular accident may be considered. In Re Wherrett, unreported, No.1041963, Crisp J., when considering an application under the Testators’ Family Maintenance Act to extend time to apply under that Act, said that to embark upon a detailed examination of the justice of the claim would be to anticipate the actual hearing of the claim when the court would almost certainly not be in possession of all the relevant material, but that on the other hand it would be difficult to exclude all consideration of the relative strength of the Applicants. Crawford J. in Barry v. Repco Bearing Company Pty. Ltd., unreported, No.41963 apparently considered that the question whether the applicant had a prima facie case for damages might be considered, and in Klein v. Domus Pty. Ltd., (1963) 80 W.N. (N.S.W.) 515 at p.516. Herron J. (as he then was) in his judgment in the Court in Banco said that in an appropriate case it was relevant to discuss the circumstances surrounding the alleged negligence and the causal connection between the alleged negligent act or omission and the damages said to flow therefrom; but that such applications should not be ‘the forum for a close and full–scale debate of the facts on which liability is alleged’, and Maguire and Ferguson JJ. concurred.
With respect I agree with what appears to be the tenour of all three judgments, namely that in an appropriate case it is relevant to consider the facts and circumstances of the act or event in question, but it is not ordinarily proper, in the words of Crisp J., ‘to embark upon a detailed examination of the justice of the claim’. I think that it is of some importance to consider whether the Applicant can show prima facie an arguable case for damages, and for that purpose his affidavit should ordinarily contain sufficient material for this to be considered.”
15. In Mansell v. Patons & Baldwins (Australia) Ltd. Unreported No.821968 Chambers J. set out the above passage from Marton to which he said he “found it useful to refer”. He had a dearth of direct evidence as to the occurrence of an accident and the facts upon which a complaint of negligence by an employer in not providing a safe system of work had been made. The material before him in part consisted of the proposed pleadings and other materials from which he drew the inference that statements had been taken from the applicant and from other witnesses and that they were in a position to give evidence in support of the allegations contained in the draft statement of claim. Clearly, this material, if presented in this form on trial, could not be said to amount to a prima facie case of negligence by the employer. Chambers J. concluded that “the applicant can present, prima facie, an arguable case to a court of trial”. Crawford J. in Wakelin v. Comalco Aluminium (Bell Bay) Ltd. Unreported No.691975 adopted the test of “whether prima facie there was an arguable case to a court of trial”.
16. In Re Makowski Unreported No.991972, Burbury C.J. said, at p.6:
“As at present advised however I would not think that a prima facie case need necessarily be established as a condition of the exercise of the discretion. If the applicant can show that he has a case which there is a reasonable possibility of sustaining, I would have thought that if it is otherwise just as between the parties time should be extended, he should not be deprived of the opportunity of litigating his claim because it may not be possible to characterize it as highly as being a ‘prima facie case’.”
17. Wright J. in Lanham v. Illingworth Unreported No.721986 found that the applicant passenger in a two car collision had demonstrated a case of sufficient strength to permit her to sue both drivers, even though the evidence on the application might not show a probability that she would succeed as against both proposed defendants and might succeed only against the first. He took into account the fact that the institution of proceedings could improve the quality of the evidence available to the applicant by enabling her to interrogate and to procure discovery and said that “if a passenger is injured in such circumstances he or she usually succeeds against one or other or both drivers simply because after it has heard the whole case, a court can normally reach a conclusion as to negligence, even though the passenger and her advisers, having been unsure at the commencement of proceedings as to the ultimate findings that will be made, have wisely joined both drivers as defendants”. He also referred to the rule in Jones v. Dunkel (1959) 101 C.L.R. 298.
18. If the applicant cannot show on the materials taken at face value which he produces to the court that he has an arguable case, granting him an extension would clearly be an exercise in futility and this would be a sound reason why it could not be just to extend time. In my view, an applicant must show that he has a reasonably arguable case. He should not be denied the right to take proceedings, all other things making it just that he should have the extension, merely because on a close analysis of the material put forward on the application it could be said that a judge given the same material on trial and no more would uphold a submission of no case to answer.
19. Does the applicant have a reasonably arguable case? The evidence shows that the second named plaintiff underwent a leucotomy at the Alfred Hospital on 12 May 1983 and was discharged six days later. She was seen by a Dr. Eric Ratcliff, a consultant psychiatrist, on 20 May 1983 at the Launceston General Hospital. He observed infection at the sites of the leucotomy on both sides of her head. The wound on one side was completely closed and the other had discharged earlier that day. In an affidavit he deposed that:
“3. ASSUMING that her care from the time of her discharge from the Alfred Hospital to her admission to the Launceston General Hospital was appropriate, then in my opinion the infection must have entered either at operation or before discharge from the Alfred Hospital, and must be the result of a failure of sterilisation at operation or on subsequent dressing or treatment. Without the Alfred Hospital notes, it is not possible to be more precise, but I say this on the basis that the infection was under the skin, and therefore would not have entered once the wound was closed.
4. THE entry of infection to an operation site is preventable and the fact of the development of infection suggests some failure to take all adequate steps to prevent it. Again, it is not possible to be more precise without the notes.”
20. In a second affidavit sworn on 30 January 1992 he deposed:
“2. IT appears from the recorded notes that no observation of any abnormality of the operation wounds was observed up to the time of Mrs. Crockett‘s discharge from the Alfred Hospital on the 18th May 1983.
3. NEVERTHELESS, when I saw her two and a half days later at the Casualty Department at the Launceston General Hospital there was obvious swelling at both operative sites, and that on the right had discharged a mixture of yellow pus and serous fluid. My opinion at the time, I clearly recall, was that infection must have been introduced at the operation, as the wound on one side was closed and dry, but clearly infected underneath, and that on the other side had opened and discharged only that day, according to her husband. The subsequent finding of cerebral abscesses at or near the site of the leucotomy lesions could possibly be explained by surface infection travelling inwards through the track of the leucotome, but it is in my opinion much more likely to have been carried in during the procedure.
4. THE information from the Alfred Hospital confirms the impression I formed when I first saw Mrs. Crockett on the 20th May 1983.
5. THE circumstantial evidence for the probability of infection entering at operation is, in my view, threefold. Firstly, the infection was bilateral. The operation on each side is separate – there is no direct communication between the two operative lesions except via the subarachnoid space. Secondly, the wounds were closed and dry by the time of her discharge from the Alfred Hospital. Thirdly, the subsequent development of cerebral abscesses at the sites of the leucotomy lesions, as well as near the surface.”
21. When this matter first came before me in February 1992 I ruled inadmissible the last sentence in each of paras. 3 and 5 because the source of the information was not disclosed. However, after an adjournment the matter was rectified by the presentation of a third affidavit dated 1 May 1992 in which he deposed:
“2. FOLLOWING my seeing Louise Mary Crockett at the Casualty Department, Launceston General Hospital on the 20th May 1983 I retained a peripheral interest in her case, although not directly involved in it. The outcome of the infection became notorious among Launceston psychiatrists.
3. SOMETIME prior to my leaving the Lindsay Miller Clinic in October 1985 Mrs. Crockett was admitted under my care. I recall that at a time between 1983 and 1985 I had seen films from CT scans showing evidence of cerebral abscesses.
4. IT follows that at some time that I cannot accurately recall, I have myself seen direct evidence of cerebral abscesses, as well as having been told that these had proved to be the most serious complications in Mrs. Crockett’s case.
5. PARAGRAPH 5 of my affidavit of the 30th January 1992 is therefore based on my direct knowledge of the case and on other information received by me, indirectly from sources I cannot now precisely identify.”
22. The respondent read two affidavits before the Master and before me. Neither deponent was cross–examined. The first, Dr. Sunderland, the Acting Director of Medical Services at the Alfred Hospital, deposed inter alia that the hospital‘s records relating to the operation and to Louise Mary Crockett did not indicate that there was any problem with the operation or with any post operative infection or complication and that he believed she was fit for discharge on 18 May 1983. The second deponent, Dr. McNeur, a former Associate Professor of Surgery at the University of Monash, swore as follows:
“4. The medical record indicates that, between the operation and the patient’s discharge from hospital six days later, there was no evidence of infection. The patient‘s temperature was stable throughout that period, and on discharge her wounds were observed to be ’clean and dry‘.
5. I have read the affidavit of Eric Vaughan Ralph Ratcliff sworn 17 June 1990. I disagree entirely with Dr Ratcliff’s conclusions that –
(a) Any infection he observed on admission of the patient to the Launceston General Hospital ‘must be the result of a failure of sterilisation at operation or on subsequent dressing or treatment’;
(b) ‘The entry of infection to an operation site is preventable’; and
(c) ‘The fact of the development of infection suggests some failure to take all adequate steps to prevent it’.
6. I am able to say from my experience of more than 30 years of surgical practice that there are many possible causes and sources of infection of operation sites which cannot be eliminated. Infection can readily develop without there being any failure on the part of the surgeon or supporting medical staff or the hospital at which the surgery is performed to exercise due care and skill.
7. It is wrong to suggest that infection following an operation is prima facie [sic] of negligence in relation to the surgery or post operative medical care. I personally know of many instances of post operative infection which developed through no fault whatsoever on the part of the medical or hospital staff involved.
8. Mr Ratcliff suggests that he cannot be more precise in his views without seeing the medical record. I have studied the medical record and I am able to say that it does not indicate that there was any departure from normal operating or sterilisation techniques, or that there is any basis for alleging that any infection which developed was due to some want of reasonable care or skill on the part of Mr Elrick or the hospital.”
23. Dr. Ratcliff was cross–examined before the Master on his first affidavit and the transcript of his evidence was read on the appeal, together with his two later affidavits. He agreed that if the hospital records showed no evidence of infection during the patient‘s sojourn thereat, the chances of the infection he observed having been caused at the respondent hospital were somewhat diminished and that there was room for the possibility that the infection had entered after her discharge. However, he said:
“If indeed she had been discharged from the Alfred two days before I saw her there’s a much larger chance of the infection having got in in the early stages of wound healing than perhaps during the twenty–four hours subsequent to discharge or forty–eight hours.”
24. He agreed that he could not exclude the possibility that the infection could have occurred following her discharge. He was shown Dr. McNeur‘s affidavit and conceded that infections could arise following surgery which were not due to a failure to sterilise or to any other failure on the part of the surgeon or the supporting medical staff, and that there were some inherent risks of infection. At the end of his cross–examination on the first affidavit, his position can be summarised as being one of holding a belief that the infection probably was encountered early in the healing process, that is at the Alfred Hospital at or about the time of the operation, but that there was nothing in the hospital records indicative of an absence of due care or skill by any servant or agent of the hospital.
25. His statement in his first affidavit that “the entry of infection to an operation site is preventable” was significantly qualified, but he did not in cross–examination resile from the remainder of the opinion expressed in that paragraph of his affidavit that “the fact of a development of infection suggests some failure to take all adequate steps to prevent it”. As I understand the burden of his evidence, it is that one would not normally expect infection to be admitted to an operation site without some failure to take appropriate steps to prevent that contingency although there may be cases where, notwithstanding all due care being taken, infection can occur.
26. The principle of res ipsa loquitur has been applied to medical cases. In Mahon v. Osborne [1939] 2 K.B. 14 the Court of Appeal held in a case where a swab was left in a patient’s body at the end of an abdominal operation with the result that he died three months later, that the leaving of the swab in the body was sufficient to provide evidence of negligence in the absence of any satisfactory explanation from the defendant‘s surgeon. In the later case of Cassidy v. Ministry of Health [1951] 2 K.B. 343 the court likewise held that the maxim applied and that the onus lay on the hospital authority to prove an absence of negligence. Singleton L.J., at pp.353–354, cited the principle that:
“Where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
Denning L.J., at pp.365–366, said:
“If the plaintiff had to prove that some particular doctor or nurse was negligent, he would not be able to do it. But he was not put to that impossible task: he says ’I went into the hospital to be cured of two stiff fingers. I have come out with four stiff fingers, and my hand is useless. That should not have happened if due care had been used. Explain it, if you can.‘ I am quite clearly of opinion that that raises a prima facie case against the hospital authorities.”
28. The present case may not be so patent as that of an omission to remove a swab, but having regard to Dr. Ratcliff’s evidence, I think it could reasonably be argued that such an infection does not, in the ordinary course of events, occur if the hospital servants and agents exercise proper care and that the circumstances are such as to call for a satisfactory explanation, the absence of which will justify a finding of negligence. It may be that on the trial evidence from more qualified expert witnesses in the field of surgery and treatment of this kind than Dr. Ratcliff who is a consultant psychiatrist may be preferred but this is not an appropriate occasion to weigh the differing opinions of him and Dr. McNeur notwithstanding the apparent superiority of the latter‘s qualifications for this task. To do so would be to embark prematurely upon a detailed examination of the justice of the claim.
29. Although the case is not without difficulty, I am satisfied that the applicants have shown that they have a reasonably arguable case against the respondent and that the time sought by them should be granted.
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