Crombie v State of Tasmania - [1999] TASSC 55

[1999] TASSC 55

CITATION: Crombie v State of Tasmania [1999] TASSC 55

PARTIES:  CROMBIE, Robert
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  796/1995
DELIVERED ON:  14 May 1999
DELIVERED AT:  Hobart
HEARING DATES:  6, 14 May 1999
JUDGMENT OF:  Underwood J

CATCHWORDS:

[Edited reasons given orally]

REPRESENTATION:

Counsel:
             Applicant:  R E Hudson
             Respondent:  P Turner
Solicitors:
             Applicant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [1999] TASSC 55
Number of Paragraphs: 27

Serial No 55/1999
File No 796/1995

ROBERT CROMBIE v STATE OF TASMANIA

REASONS FOR JUDGMENT UNDERWOOD J

14 May 1999

This is an application made by the plaintiff for orders:

(a)that the time be extended for the bringing of an application for an order pursuant to the Rules of Court, O8, r1;
(b)that the writ of summons be renewed, pursuant to the same rule.

Towards the end of May 1992, the applicant was admitted as a patient to St Helen's Hospital. There, he underwent surgery at the hands of a medical practitioner, Mr David Muir. From the affidavit material read in support of these applications, it appears that the surgical procedure was successful, but that post-operative complications arose. In consequence of the post-operative complications, the applicant was transferred from St Helen's Hospital to the Royal Hobart Hospital on 30 May 1992. At the Royal Hobart Hospital, appropriate treatment required the introduction of a catheter. Medical opinion annexed to one of the affidavits read on this application states that the catheter was inserted into the sub-clavian artery when it should have been inserted into the sub-clavian vein. Subsequent to the insertion of the catheter, the applicant suffered a stroke which was likely to have been caused by a clot moving to the brain from the site of the catheter insertion. The medical opinion is to the effect that the stroke may well have occurred due to the insertion of the catheter into an artery instead of into a vein.

As a result of the stroke, the applicant suffered injury, loss and damage and consulted Mr Faulds, legal practitioner, for advice. According to the applicant's first affidavit, he was not then persuaded that his case was sufficiently strong to warrant the commencement of proceedings, and was told by Mr Faulds that he had seven years from the date of the insertion of the catheter within which to commence proceedings. Clearly, this advice was incorrect, but nothing turns upon this.

The applicant decided to consult a Sydney solicitor, Mr Fegent, who specialises in personal injury claims. This consultation occurred on 18 April 1995, the upshot of which was that Mr Faulds was instructed to institute proceedings on behalf of the applicant against Mr Muir, St Helen's Hospital and the Southern Regional Health Board, the last named then being the authority responsible for the management of the Royal Hobart Hospital. The writ and statement of claim were filed on 30 May 1995, the last day of the three year period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crombie v State of Tasmania

Details

AGLC: Crombie v State of Tasmania [1999] TASSC 55
Case: [1999] TASSC 55
Decision Date: 14 May 1999

CaseChat Overview and Summary

The case of Crombie v State of Tasmania involved the plaintiff, Robert Crombie, who sought an extension of time to bring an application for an order under the Rules of Court and the renewal of the writ of summons. The plaintiff had undergone surgery at St Helen's Hospital, which was successful but led to post-operative complications requiring transfer to the Royal Hobart Hospital. There, a catheter was mistakenly inserted into the sub-clavian artery instead of the vein, leading to a stroke and subsequent injuries. The plaintiff initially sought legal advice but decided not to proceed due to perceived insufficient evidence. Later, he consulted a Sydney solicitor and filed the writ and statement of claim on the last day of the three-year limitation period. The writ, however, was not served within the required timeframe due to oversight by the plaintiff's Hobart solicitors, leading to the current application.

The legal issues before the court were whether the court should grant an extension of time for the application under Rule O8, r1 of the Rules of Court and whether the writ should be renewed for a period not exceeding six months. The court considered the principles for exercising this discretion, as outlined in National Mutual Life Association of Australasia Ltd v Huddlestone & Anor. The court noted that while the application was only one day out of time, the delay in bringing it before the court needed justification. The plaintiff's legal advisers had exhibited significant incompetence and delays, but the plaintiff himself was not at fault for these issues. Despite the delay, the court was satisfied that there was good cause for the renewal of the writ due to the oversight by the Hobart solicitors and the absence of opposition from the State of Tasmania.

In conclusion, the court granted the extension of time for the application and renewed the writ until 20 May 1999. The court found that the delay in hearing the application was largely due to the concurrent application to extend time to commence proceedings against other defendants. The court emphasized that the delay was not attributable to the plaintiff, who had been proactive in following up with his legal advisers. The final orders included extending the time for the application until 31 May 1996 and renewing the writ until 20 May 1999.

Orders