Diment v South Eastern Area Health Service

[2009] NSWSC 1097

CITATION:	DIMENT v SOUTH EASTERN AREA HEALTH SERVICE [2009] NSWSC 1097
HEARING DATE(S):	Thursday 8 October 2009
JUDGMENT DATE :	8 October 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	I permit the amendments as sought in the notice of motion filed on 2 July 2009. I order the defendant to pay the plaintiff's costs of and incidental to this application.
CATCHWORDS:	PRACTICE AND PROCEDURE - application for leave to amend plaintiff's pleadings - plaintiff had ongoing medical condition - defendant was operator of State hospital and had knowledge of plaintiff's medical history - no actual prejudice demonstrated - principled exercise of discretion to grant leave to amend
LEGISLATION CITED:	Civil Procedure Act 2005 Workers Compensation Act 1987 Work Place Injury Management Act and the Workers Compensation Act 1998
CASES CITED:	Aon Risk Services Australia Limited v Anu (2009) 83 ALR 951 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Itek Graphix Pty Limited v Elliott [2002] NSWCA 104 Salido v Nominal Defendant (1993) 32 NSWLR 524
PARTIES:	Christine Ellen DIMENT v SOUTH EASTERN AREA HEALTH SERVICE
FILE NUMBER(S):	SC No 20720 of 2001
COUNSEL:	P: A J McQuillen D: D C Morgan
SOLICITORS:	P: Gregory Harrison Healey D: Moray & Agnew

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

THURSDAY 8 OCTOBER 2009

No 20720 of 2001

CHRISTINE ELLEN DIMENT v SOUTH EASTERN AREA HEALTH SERVICE

JUDGMENT

1 HIS HONOUR: This is an application made by amended notice of motion filed on 2 July 2009. The application is made by the plaintiff in proceedings originally commenced by way of statement of claim filed 16 August 2001 in the Common Law Division of this Court.

2 The plaintiff's date of birth is 22 May 1954 and she entered the employment of the defendant, in particular, at Sutherland Hospital in the Intensive Care Unit on 7 June 1993.

3 The nature of the proceedings are a claim for damages. The original statement of claim has been amended more than once and the proceedings, as they presently stand, claim against the defendant on two bases that may be stated in summary form. The first is based upon the defendant's alleged liability as an employer of the plaintiff. The second relies upon the alleged professional negligence of the defendant in its care and/or treatment of the plaintiff or otherwise. Hence proceedings have been, at some stage, transferred to the Professional Negligence List.

4 The essence of the plaintiff's claim is that she, in the course of her employment, contracted a condition, which I will refer to in a little bit more detail later, as a consequence of contact with latex. In the statement of claim, a variety of conditions are said to arise out of the latex contact, including rash, itchiness on hands and body, dermatitis said to be causing swelling of the eyes, an influenza like condition and other complications over time. The plaintiff claims damages for the condition, which she alleges resulted from two forms of exposure. The first, by her wearing latex gloves while she was working in the Intensive Care Unit of the hospital, and the second due to airborne exposure of latex from latex gloves worn by others.

5 In late April or July 1998, the plaintiff's employment changed. She was moved from the Intensive Care Unit to what is called Southcare. It seems that she has been employed there to this day, as I understand it, as a technical assistant/occupational therapy aide.

6 The orders sought in the amended notice of motion are:-

(1) That leave be granted to further amend the plaintiff’s statement of claim.

(2) That leave be granted to extend such time as subsequent injuries arise, subject to the three year period of s.151D of the Workers Compensation Act 1987.

(3) Such other orders as the case requires.

(4) Costs.

7 The amended notice of motion is supported by affidavits of three deponents. Firstly, Mr Gregory Healey, solicitor, sworn 7 October, to which, for some reason, was attached further affidavits by him of 19 May 2009 and 29 June 2009. Secondly, the affidavits of Matthew Fawkner sworn 29 June, 11 June and 1 October 2009 and an affidavit of the plaintiff sworn 13 August 2009. The plaintiff and Mr Healey were cross-examined at the hearing today.

8 I have been assisted by written submissions that are comprehensive and detailed on behalf of the plaintiff and the defendant and the plaintiff’s submissions in reply. I express my indebtedness to counsel and their solicitors for preparing those written submissions which have been supplemented by oral submissions.

9 The nature of the amendments are set out in a document (Annexure A) attached to the affidavit of Mr Fawkner of 11 June 2009. There are three proposed amendments. The first two pre-date the filing of the statement of claim. The second post-dates it. The first two allege exposure of the plaintiff to latex or latex powder in or about June 1998, which is said to have resulted in her sensitivity to latex becoming heightened, and subsequently in the year 2000, the plaintiff saying that she thought that that occurred at the end of 2000, when she attended a meeting with a number of persons at the defendant's premises and again some exposure to latex powder occurred, apparently, it is alleged, as a result of other employees who were there having recently worn or had contact with latex gloves.

10 Again it is alleged that symptoms developed as a consequence of sensitivity to latex and/or latex powder and her sensitivity to those substances has further increased.

11 The third amendment (paragraphs 11 and 20 of the proposed further amended statement of claim) alleges that, on or about 16 September 2002, whilst in the course of employment at the defendant’s hospital, she was further exposed to latex or latex powder. She had a reaction. Again it is said that increased her intolerance to latex or latex powder and her sensitivity to those substances has been further increased.

12 In the joint judgment of the High Court in Aon Risk Services Australia Limited v Anu (2009) 83 ALR 951, the High Court said in relation to the problems there under consideration which concerned the issue of amendments for pleadings, that the starting point for any application to amend must be the rules governing such applications in the relevant jurisdiction.

13 So far as the present application is concerned, Mr A J McQuillen of counsel, who appeared for the plaintiff, relied upon the power to grant leave to make the amendments under provisions of the Civil Procedure Act 2005 as well as the Workers Compensation Act 1987.

14 In that respect, he relied upon, firstly, s.64 and s.65 of the Civil Procedure Act, Part 14 Rule 17 which states:-

“A party may plead any matter even if the matter has arisen after the commencement of proceedings.”

15 That provision obviously would be relevant to the third amendment sought in the proposed further amended statement of claim in paragraphs 19 to 20. In addition, reliance is placed upon the power under the Workers Compensation Act which is to be found in s.151DD, in particular s.151DD(2) which confers power on the Court to grant leave for proceedings to be brought more than three years after the specified date.

16 In the written submissions for the defendant filed on 7 October 2009, it was said at paragraph 16:-

“Based on the way the defendant has conducted the defence of the original claims it neither consents to nor opposes the granting of leave nunc pro tunc in respect of the original pleased (sic) claim.”

17 It was explained during the course of argument that the defendant did not file any defence raising a limitation defence and that explains the statement made in paragraph 16.

18 The history in this matter, as established by the documentation that is in evidence, is one in which the plaintiff has had ongoing problems during the course of her employment. The defendant has been in a somewhat unique position whereby, being the operator of a major State hospital, it has been able to both receive reports (complaints from the plaintiff about her condition over the years) and attend to her both directly and via referral to the workers compensation insurer and, in turn, the rehabilitation entity known as CRS. In addition, it has had the benefit of receiving from time to time medical reports on her condition.

19 It has been properly conceded in this case that the defendant does not contend in its opposition to the grant of leave to the proposed amendment that if leave were granted it would be prejudiced. It does not seek to establish actual prejudice, and that concession was fairly and properly made, if I may say so. With respect, it is clear that in the context of the ongoing relationship between the plaintiff and defendant, the plaintiff has been the subject of intensive review over the years. As I have earlier said, there would be few better placed to know exactly what has been the history of the plaintiff and her unfortunate condition than the defendant, or particularly its staff members at Sutherland Hospital, who have had direct dealings with her about her condition.

20 There has been no evidence filed on behalf of the defendant to support any contention of any other form of disadvantage, forensic disadvantage or otherwise. Again, given the context of the relationship to which I have referred, it would be surprising indeed if the defendant did seek to establish some form of forensic or other disadvantage. I can proceed on the basis that none has been shown, and certainly no submissions have been made to that end, properly so.

21 It has been frankly conceded during the course of argument that the real point of issue is the absence of an explanation as to why the amendment is sought now and why it was not dealt with some time ago, perhaps years ago. The absence of an explanation, it has been suggested, is fatal to the grant of leave.

22 I will return to that point. I have raised with counsel that on the pleadings, on one basis at least or one interpretation, from the outset the plaintiff has relied upon her exposure throughout the period of her employment up to the date of the statement of claim being filed on 16 August 2001, drawing attention to the fact that the plaintiff refers to ongoing exposure allegedly in breach of obligations by the defendant (paragraph 14). Paragraph 15 provides that the injuries were occasioned by her employment with the defendant:-

15 …
a) Failed to provide a safe working environment for the Plaintiff.
b) Failure to advise staff of the dangers of latex intolerance when known to the defendant.
c) Failure to supervise employees, servants or agents in the provision of safe surgical gloves.
d) Failure to implement a system of inspection of surgical gloves worn by staff to ensure that they did not cause intolerance reactions.
e) Failure to see that the Plaintiff could be put in a position of peril or danger by the surgical gloves issued.
f) Failure to provide gloves safe for the Plaintiff to wear.
g) Exposing the Plaintiff to a risk of injury and allowing her to [sic] continued to be exposed, which exposure could have been avoided by reasonable care on the part of the Defendant.
h) Failure to diagnose promptly that the Plaintiff had a [sic] intolerance to latex
i) Failure to advise the Plaintiff of the possible remedies available to her in the circumstances of her complaints.
j) Failure to immediately direct the Plaintiff to immediately seek specialist medical attention.
k) Res ipsa loquitur.”

23 Although specific instances are identified by date, the broad nature of the plaintiff’s allegations is essentially that she has, from time to time, been subjected to latex exposure either by being required to use latex equipment herself or others being required to do so, and her being affected by the environmental disposal of such latex substance.

24 On that interpretation, what the plaintiff in effect is seeking to do is to provide particulars in relation to the first two instances that are alleged to have occurred in 1998 and in the year 2000. So construed the plaintiff would not in fact be seeking to raise a new cause of action beyond the broadly pleaded cause of action that she was exposed during the whole of her employment, up to the date of the filing of the statement of claim.

25 There would be no difficulty whatsoever in obtaining leave to make that sort of amendment because it would operate to the advantage of a defendant to have more particulars of a general allegation. However, even if that were not the interpretation to be placed upon it, and I think there is considerable reason to say that it is the agreed interpretation, the fundamental question is whether or not, even if it be that the plaintiff is seeking leave to file new causes of action separately from those already filed, it is a case in which leave ought to be granted either under the Civil Procedure Act or the other provisions to which I have referred.

26 I have in that respect had my attention drawn at some length to the decision of the Court of Appeal in Salido v Nominal Defendant (1993) 32 NSWLR 524 and more recently, of the Court of Appeal in Itek Graphix Pty Limited v Elliott [2002] NSWCA 104 in which Ipp JA gave the principal judgment and with whom the Chief Justice and Sheller JA agreed.

27 It is unnecessary here to set out in any detail what Ipp J there said. His Honour referred to Salido (supra) at some length at [48] and, stated that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be fair and just to grant leave.

28 Gleeson CJ, in Salido (supra) referred to the fact that the lack of diligence on the part of the plaintiff or a plaintiff’s representative in ascertaining and asserting his or her rights to the tortfeasor was a material factor, as would the extent of the relevant delay and the reason for it.

29 The principles for the approach in such applications are dealt with by Ipp J in Itek (supra) at [85] to [87] and [89], all of which have been drawn to my attention in the course of argument.

30 It is to be noted that as his Honour observed, based on authority including the High Court decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, that broad considerations of justice govern the grant of leave to bring proceedings after the limitation period has expired. These considerations include an examination of the conduct of the applicant for leave and the reasonableness of the explanation for delay.

31 Further, Ipp JA, at [88], pointed out that the justice of the case is to be determined by its own individual circumstances. That is of particular importance in the present application.

32 His Honour also observed that failure to satisfactorily explain the delay will not be decisive, and that ordinarily, the issue of prejudice will be of paramount importance.

33 His Honour went on to say that:-

“The justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused.”

34 In applying the principles, this is not a case where an extension of the limitation period was sought to bring a case against an alleged tortfeasor, who had not had the advantage of being privy to contemporaneous evidence surrounding the plaintiff. This is not a case where orders may have lapsed, which can readily be asserted with presumptive prejudice or it can be established, for example, by reason of loss of witnesses or documents and the like, that there will be, if leave is granted, actual prejudice. I have already referred to the fact that the present case is in an entirely different category in that respect.

35 Turning briefly to the provisions of s.151D of the Workers Compensation Act, it is to be noted that the section refers to proceedings for damages in respect of injury concerned against the employer. Injury is defined in s.4 of the Act as including, amongst other things, disease contracted by a worker in the course of employment and to which the employment was a contributing factor, as well as the aggravation, acceleration etc. or deterioration of any disease where employment is a contributing factor to the aggravation etc.

36 I do not purport to have a detailed grasp of the medical issues or the nature of the medical condition in the present case, other than to say that the nature of the “injury” involving matters such as latex allergy and the like would appear to be more in the nature of a disease, or the exacerbation, acceleration etc. of a disease, than the usual form of workplace injury caused by trauma.

37 I raise the nature of the condition that the plaintiff sues upon as relevant generally to a consideration of this application.

38 Whilst it is true that there is a pleading already made, and now sought to be developed, of so called “events”, it is plain that those “events” are not isolated from the overall continuing and unfortunate history which the plaintiff obviously has suffered from for many years.

39 The affidavit of Mr Fawkner sworn 1 October 2009 attaches a good deal of material, amongst it being the report of Dr Katelaris, consultant physician, who, as I understand it, is an expert in the field of allergy and methodology. In a report dated 2 April 1998 and addressed to the Divisional Nurse Manager, Critical Support Services, Caringbah, Dr Katelaris stated

“My interpretation of this series of events was that even though she was avoiding latest gloves, she was exposed to an allergen in an airborne manner via the powdered glove used in the unit. She has gradually increased her sensitisation. The respiratory symptoms she explained to me she was having at work are a manifestation of the latex allergy.”

40 Also attached to Mr Fawkner’s affidavit is a large volume of rehabilitation notes. In the note of 2 June 1998, Dr Katelaris also spoke at length about the “strong tendency for continual exposure to [increase] the sensitivity and the case for not masking this sensitivity by the use of anti histamines ...”

41 It can be seen from the medical information on this application that these are not separate relevant injuries or separate events, but are part of the continuing medical condition and the nature of the disease that has arisen in the past, in which there has been an increase gradually of sensitisation, no doubt by periodic exposure from time to time.

42 The nature of the condition, based on that medical evidence, includes the exacerbation of the condition, which the plaintiff alleges was contracted from the services of the defendant.

43 The amendments sought are in those terms. In the relevant paragraphs, the question of increased sensitisation was picked up, and it would be artificial to see these as separate injuries about which the defendant has not had full knowledge, notice or understanding, with the assistance of medical information received from time to time.

44 So understood, that is as part of an ongoing picture over time in the service of one employer for many years. It can be readily seen that even if they be classed as “events”, they are part of a continual history. They do not fall in the periodic category in which limitation type applications are brought in relation to a particular event occurring many years before or outside the knowledge of the putative tortfeasor.

45 The question of whether there is or is not an explanation, and it has been said that there is no particular explanation as to why two of the three incidents I have referred to were not pleaded at an earlier time, the solicitor frankly conceded that he could not explain them away. Presumably the fact that this condition has gone on for so long, and that there have been so many events surrounding it, has caused it to be overlooked. In some contexts, such as those in the Aon case (supra), where there are substantial changes in the history to the litigation being sought by amendments, the explanation would clearly be of greater importance than in a case such as the present where the defendant is better placed than most to know exactly the history of the plaintiff and her condition.

46 The explanation in such circumstances is not such a material matter as to outweigh the question of prejudice, which I have earlier said Ipp JA said was of paramount consideration. Additionally, his Honour indicated that, although it is relevant, it may not be decisive. I do not think it is decisive simply because the defendant, as I have said, has been kept well informed both by the plaintiff’s reporting of her condition, her attendance for treatment, the medical material, services and the like. Accordingly, the absence of any particular information in respect of those two incidents should not result in the decision against the discretion of granting leave. In fact, the refusal to grant leave would, in my opinion, be a completely wrong exercise of the judicial discretion.

47 Accordingly, I propose to allow the amendment sought in paragraphs 14 to 16 and in relation to the allegations in June 1998 and 2000.

48 Before turning to the amendment sought in paragraph 20, I should advert to the submissions based upon the provisions of Division 2 of the Work Place Injury Management Act and the Workers Compensation Act 1998. Written submissions were provided, setting out the basis for the contentions by the defendant.

49 Those submissions provide a history to the grant of leave. Amongst other things, it is said that it has not been demonstrated that the discrete evidence or events of June 1998 and 2000 would exceed the threshold requirement, that is, that there was a permanent impairment as a result of the particular episodes in June 1998 and 2000 amounting to a permanent impairment of an injured worker by at least 50%. Furthermore, it was submitted that there has been no compliance with procedural requirements such as the filing of a statement under s.315 of that Act and the like.

50 Those submissions are premised upon the application of that Act to the facts of this case. I proceed upon the basis that it can be said that those provisions do apply in the factual context of the present case, in which there are two episodes relied upon in a continuing history starting in 1993 of exacerbations of symptoms or of the occurrence of symptoms. It would be wholly artificial to say that each episode has to produce a permanent impairment in excess of 50%.

51 Otherwise, the plaintiff cannot claim because the plaintiff has not complied with procedural provisions in respect of either exacerbation, then there is no power for the claim to be brought. That can only be so if each event, as I have described it, or episode is taken as an isolated instance of injury. It is clearly not so in the present case for the reasons that I have stated.

52 Accordingly, I do not consider a contention based on those provisions is sufficient to warrant refusal of the amendments to which I have referred.

53 Finally, I turn to the amendments sought in paragraphs 19 and 20 of the draft further amended statement of claim which alleges that on or about 16 September 2002, in the course of employment, the plaintiff had a severe reaction due to exposure to latex or latex powder. Again, [19] and [20] read together, conclude that, in consequence of the exposure, the plaintiff’s sensitivity has further increased. That again is but a step in the ongoing medical picture of the plaintiff.

54 Having regard to the nature of the condition, the plaintiff’s sensitivity, according to Dr Katelaris, tends to increase the more exposure she has.

55 The occurrence of an event after the date of the filing of the statement of claim is the type of situation for which Part 14 Rule 17 has been inserted. Again, all of what I have said in relation to the other amendment sought here applies, and though some orders have gone by since that incident occurred, there is no claim made of prejudice in any form or disadvantage. My attention has been drawn to the fact that document 9 attached to the affidavit of Matthew Fawkner of 1 October 2009 is a copy of a report dated 16 September 2002 referring to an allergic reaction, being the subject of a presenting complaint by the plaintiff, knowing the history of allergies to latex.

56 It is clear the defendant was on notice from the very day upon which it is said that the symptoms and the reaction were experienced. Again, it is understandable why this is not a case in which the defendant would be in any way disadvantaged. Failure to so explain the delay, other than what the solicitor has said in the witness box, namely that he cannot proffer a specific explanation to the court, would not be sufficient to outweigh the justice merits of the case.

57 At the end of the day, I come back to the observations of Gleeson CJ in Salido (supra) and those of Ipp J in Itek (supra). The fundamental question to be asked at this time is whether it would be fair and just to grant leave. Nothing has been pointed out as to why it was said to be unfair or indeed unjust.

58 The burden of the material points in the opposite direction. I accordingly intend to permit the amendment sought.

59 You can draw up a formal set of orders if you like and send them to my associate and I will sign them in chambers and they will be sealed.

60 Anything else?

McQUILLEN: We would seek an order for costs.

MORGAN: It is my application that the order for costs be costs in the cause, given the nature of the application and the fact the plaintiff is seeking an indulgence and that is the exercise of the two discretions that have been sought today. They are in a context which your Honour has held in exercising the discretion the absence of an explanation. Explanation was not determinative. However this was in my submission, an application based by the defendant seeking an indulgence. In those circumstances in my respectful submission an order that the plaintiff’s costs be those costs in the success of the litigation would not be unreasonable.

McQUILLEN: We asked the defendant whether or not they would consent and we got a negative back saying they did not consent and they opposed it. Therefore the need for a motion and there has been a great deal of material provided, argument and written submissions and the plaintiff has been successful in seeking and obtaining the orders that it sought and in my respectful submission the proper order is in the circumstances having regard to the refusal by the defendant where the plaintiff has been successful there should be an order for costs.

61 HIS HONOUR: In this matter there has been an application for costs on behalf of the plaintiff. The application is opposed. It is submitted on behalf of the defendant that costs should be costs in the cause and the application is one which sought an indulgence from the court. In many cases it would be appropriate that an interlocutory application have the costs order of the kind sought by the defendant. However, I consider in the present case that the amendment sought, particularly in circumstances in which no prejudice or disadvantage whatsoever can be identified, having regard to the principles to be applied by the authorities to which I have referred, the defendant ought to have consented to the amendments but did not do so. There has been a great volume of evidence enumerated to support the application and there has been a full day of hearing.

62 In the circumstances, I should make an order that the defendant pay the plaintiff’s costs of and incidental to the application and I so order.

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