Direen v Retarded Citizens' Welfare Association of Tasmania
[2002] TASSC 105
•22 November 2002
[2002] TASSC 105
CITATION:Direen v The Retarded Citizens' Welfare Association of Tasmania [2002] TASSC 105
PARTIES: DIREEN, Penelope Joan
v
THE RETARDED CITIZENS' WELFARE ASSOCIATION ACN 009 484 619
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 339/1995
DELIVERED ON: 22 November 2002
DELIVERED AT: Hobart
HEARING DATES: 13 November 2002
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of actions - Extension of time - Arguable case - Explanation for delay - Prejudice - Exercise of the discretion.
Wrongs Act 1954 (Tas), s3(6).
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: A R Mills
Defendant: T G Bugg
Proposed third parties: K B Proctor S C
Solicitors:
Plaintiff: Piggott Wood & Baker
Defendant: Dobson Mitchell & Allport
Proposed third parties: Murdoch Clarke
Judgment Number: [2002] TASSC 105
Number of Paragraphs: 18
Serial No 105/2002
File No 339/1995
PENELOPE JOAN DIREEN v
THE RETARDED CITIZENS' WELFARE ASSOCIATION ACN 009 484 619
REASONS FOR DECISION MASTER S J HOLT
22 NOVEMBER 2002
This is an application by the defendant for an extension of time to commence contribution proceedings under the Wrongs Act 1954 ("the Act") and subject to the grant of the extension for leave to file and serve a third party notice. The plaintiff claims to have suffered a back injury in the course of her employment with the defendant as a result of an unsafe system of work. The defendant claims that much of the plaintiff's ill health is attributable to medical complications arising from the treatment of the injury. The defendant wishes to recover contribution in respect of any damages awarded against it for those health complications from the plaintiff's general medical practitioner, Dr Bernard Mather, and the company, Bernard Mather Medical Services Pty Ltd, under the Act, s3(1)(c). The time limit for the commencement of contribution proceedings prescribed by the Act, s3(5) is twelve months from the date of service of the plaintiff's writ on the defendant. That time limit expired more than six years ago.
The Act, s3(6), confers upon the Court a discretion to extend the time for the commencement of contribution proceedings subject to it being satisfied that the person from whom the contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension. Here the proposed third parties do not claim that the chances of a fair trial have been lost and so the discretionary power to extend time is enlivened. The considerations relevant to the exercise of the discretion are well settled and include the issues canvassed by the prospective third parties in opposition to the application, namely, whether the proposed claim is viable and whether the delay has been satisfactorily explained. The defendant, through its counsel, acknowledged that part of the policy of the limitation legislation is to ensure that disputes are settled promptly and that the plaintiff's contention that granting the extension of time will delay the trial of her action needs to be considered.
There was no controversy as to the factual background to be considered for the purposes of the application. It is as follows. The plaintiff suffered her back injury in February 1991. She was treated conservatively and reported improvement such that she was able to return to work in early September 1991. Her return to work, however, was short term and by the end of September 1991 she reported that her pain had significantly increased. She commenced lumbar blocks repeated at fortnightly intervals and was prescribed medication to help her sleep. By August 1992 she was reporting significant pain and was admitted to hospital for four days and given Pethidine for pain relief. On discharge from hospital her pain had not abated and by the end of November 1992 she was taking ten Panadeine Forte tablets each day along with other medication. In August 1993 arrangements had been made for her to undergo a spinal fusion in Melbourne at the L5/S1 level. In the few weeks leading up to the operation Dr Mather commenced intramuscular injections of Pethidine for short term pain management. Following the surgical procedure in September 1993 a letter was sent from the hospital to Dr Mather recommending the cessation of treatment with Pethidine.
The plaintiff, however, did not return to Dr Mather for some time. She had gone to live with her mother at Primrose Sands with the nearest doctor being a considerable distance away at Sorell. The Sorell doctor, unaware of the hospital recommendation continued the treatment with Pethidine by injection with the plaintiff self-administering the injections. The plaintiff underwent a second spinal fusion operation in January 1994 and like the first it was not successful in alleviating pain. The Pethidine injections were continued until about October 1994 when the plaintiff saw another doctor. He replaced the injections with MS Contin tablets, a slow release morphine preparation. The tablets caused nausea and so Dr Mather and an after hours doctor reinstated the self-administered Pethidine injections. In November 1994 Dr Mather told the plaintiff that she would have to cease taking Pethidine completely and that if she was unable to do this without assistance she would require hospital admission for detoxification. He changed the injections to the anti-inflammatory, Toradol, and the antihistamine sedative, Promethazine. The plaintiff was allowed to self-inject as before because Dr Mather believed that she was competent to do so and because of the isolation of the place where she was living it was not practicable to have the injections administered by a doctor. In the same month that the pharmaceutical regime was changed, namely, November 1994, the plaintiff developed the condition of fat necrosis at the sites of the self-administered injections. Both thighs were affected and contained abscesses. Dr Mather referred the plaintiff to a surgeon whom she saw in early January 1995. The surgeon was of the view that the condition was the result of the injections. He considered that if the injections ceased other areas would probably not break down and proceed to fat necrosis. He thought that the condition was best managed conservatively to see if improvement could be achieved as surgery would involve the excision of the whole of the affected area and skin grafting. He sent a report accordingly to the defendant's worker's compensation insurer on 2 February 1995.
Unfortunately, the condition worsened and by April 1995 the plaintiff was in hospital undergoing surgery. In April 1995 the defendant's legal practitioner received a medical report stating in part:
"She is currently in hospital for the removal of thigh and possibly buttock abscesses secondary to the injection of Toradol over a prolonged period. There is little pharmaceutical sense to her current regime …
…
In summary this case reveals some deficiencies in medical decision making. Her analgesic prescription has been, and still is, illogical and excessive."
According to the plaintiff's particulars that hospitalisation for treatment of her abscesses was for a prolonged period, namely, 24 March 1995 to 28 July 1995. According to the particulars, after the plaintiff's discharge from hospital on 28 July 1995 she was readmitted to hospital four more times in that calendar year for several days each time for treatment of her abscesses.
The defendant paid for the treatment of the abscesses until February 1996. On 2 February 1996 the defendant's former legal practitioner telephoned the plaintiff's legal practitioner and advised her that the medical costs of the treatment of the abscesses would no longer be paid as the abscesses were the result of unreasonable medical treatment which amounted to a "novus actus interveniens". By this time the plaintiff had commenced her action against the defendant for common law damages. Her writ had been filed on 10 March 1995. There is no evidence as to when the writ was served so as to set running the twelve month limitation period under the Act. The plaintiff's statement of claim was delivered on 31 August 1995. It claimed that the plaintiff had suffered "an injury to her back and resulting damage", but contained no further particulars of injury or damage. The defendant's appearance to the writ was filed on 6 September 1995.
The plaintiff's fat necrosis has been described by Dr Mather as an "awful occurrence". The description is apt. The surgical intervention during 1995 did not prevent the condition persisting. The plaintiff was admitted to hospital for further surgery on 26 February 1996 and was not discharged until 2 July 1996. During this time there were multiple drainage procedures to abscesses and the plaintiff developed staphylococcal septicaemia requiring intensive care treatment with intravenous antibiotics and the insertion of an infusaport in the subclavian vein to allow for regular injections of heparinised saline. According to the plaintiff's most recent particulars delivered in March 2002, since the plaintiff's discharge from hospital on 2 July 1996 she has been readmitted for treatment of abscess on 21 occasions the last being an admission from 4 June 2001 to 13 July 2001.
The defendant has made no payments in respect of the treatment of the plaintiff's fat necrosis since February 1996. There is no evidence that the plaintiff pursued the matter of the reimbursement of these expenses under workers compensation legislation and no evidence that prior to the delivery by the plaintiff for the first time of particulars of injury, loss, expense and damage on 12 April 2000 that the plaintiff communicated an intention to the defendant to claim damages from it in respect of the fat necrosis. In fact in October 1997 the plaintiff issued a writ against Dr Mather however she did not make the defendant aware of the existence of that action until October 1999.
In February 2000 the defence of the action was handed over to a new firm of legal practitioners. As I have said, however, the former firm had not received any particulars from the plaintiff, they were first delivered to the defendant's new firm in April 2000. On the evidence that has been presented on the hearing of the application this was the first time that the plaintiff made it clear that it was disputing the defendant's contention that the medical treatment amounted to a "novus actus interveniens" and intended to attempt to recover from the defendant damages in respect of the fat necrosis. Conversely the plaintiff at no time said that she accepted the defendant's contention. In fact in January 1997 the plaintiff's legal practitioner wrote to the defendant's former legal practitioner in these terms:
"We refer to the position taken by your client that Ms Direen's recurring abscesses are the result of medical negligence which has severed the chain of causation between Ms Direen's original injury and these problems. It would assist us if you were able to provide us with a medical opinion which supports your client's assertions. Clearly it would be sensible to try and clarify this issue before particularising our client's claim, particularly as our client's problems with abscesses continue."
As I have already said by April 1995 the defendant had to hand two medical reports both attributing the fat necrosis to the injection regime and one describing the regime as "illogical and excessive". In May 2000 the plaintiff's legal practitioners sent to the defendant's legal practitioners a proof of evidence of pain management specialist, Dr Michael Jackson. Dr Jackson said in that proof:
"The diagnosis was therefore essentially that of failed back surgery and increasing requirement for Panadeine Forte and Physeptone. In addition I understand that she was treated during this period of time as an inpatient with pethidine, a strategy which I would not support, together with repeated injections of Ketorolac [Toradol] leading to her abscesses. This complication has been noted in the literature, ie that of fat necrosis."
When the particulars were delivered in April 2000 the defendant was already three or four years out of time for the commencement of contribution proceedings. If they were to be commenced urgent attention needed to be given to the matter. The evidence in support of the application, however, is vague as to the pre-trial steps undertaken by the defendant after April 2000 which were directed to the matter of contribution proceedings. In summary, the evidence is as follows:
h In April 2000 interrogatories were administered for answer by the plaintiff.
h In September 2000 answers to the interrogatories were received by the defendant.
hBetween September 2000 and December 2000 the defendant inspected the plaintiff's hospital records.
hIn March 2001 the defendant arranged some appointments for the plaintiff to be examined by medical practitioners appointed by the defendant.
hThe plaintiff saw the defendant's doctors in April and May 2001.
hIn September 2001 the defendant made an appointment for the plaintiff to see a physician.
hThe plaintiff saw the defendant's physician in October 2001 and the defendant's legal practitioner and the physician discussed the plaintiff on 23 October 2001.
hThe defendant's legal practitioner met with one of the doctors who had seen the plaintiff on behalf of the defendant in February 2002 to discuss the cause of the fat necrosis. The doctor said that he needed some of the hospital records and asked the defendant's legal practitioner to obtain copies and send them to him.
hThe copies were not sent by the legal practitioner until mid-June 2002.
hOn 9 July 2002 the defendant's legal practitioner discussed the matter of the abscesses with one of the doctors who had reviewed the plaintiff.
hOn 16 July 2002 another of the doctors appointed by the defendant sent a preliminary report.
hOn 26 July 2002 the defendant filed an application for an extension of time under the Act for the commencement of the contribution proceedings.
From April 2000 the defendant had good cause to consider commencing contribution proceedings. It took until July 2002 for an application to be filed. In the meantime, it was clear that the plaintiff was becoming anxious to have her action against the defendant set down for trial. The plaintiff's legal practitioner appointed a compulsory for March 2001. The matter was then held up while the defendant sent the plaintiff off for medical examinations. The conference was resumed in June 2001, but the matter was further held up as the plaintiff still needed to deliver updated particulars and any further proofs of evidence. The updated particulars were delivered on 8 March 2002 as were further medical proofs. By letter dated 2 May 2002 the plaintiff's legal practitioner advised the defendant's legal practitioner that the plaintiff was ready to have the matter certified as ready for trial and appointed 10 May 2002 as the date for the resumption of the compulsory conference. The defendant's legal practitioner overlooked the conference and the plaintiff applied to the Court for orders to get the action set down for trial.
Counsel for the proposed third parties did not concede that the evidence presented on the application was sufficient to demonstrate that the defendant had a viable claim to recover contribution. The medical evidence is inconsistent as to the precise cause of the fat necrosis. Surgeon, Mr Wilkinson, said in his report that the condition may have been associated with the Pethidine injections. After the plaintiff's first spinal fusion operation in September 1993 Dr Mather had little input into the continuation of the Pethidine injections as the plaintiff was being managed by another doctor at Sorell. Pain management specialist, Dr Little, in a signed proof of evidence, expressed the opinion that it was not possible to ascribe the plaintiff's condition to the drugs at all, but that it was more likely the result of a lack of sterility in the self-injection process leading to infection and eventual tissue breakdown. That may have been the fault of the plaintiff rather than the prescribing doctor. Notwithstanding these differences of opinion, however, sufficient evidence has been presented to show that if certain medical opinions are accepted the defendant has a prospect of success in its claim. The fat necrosis problem commenced in November 1994, being the same month that Dr Mather prescribed the self-injection of Toradol and Promethazine. Surgeon, Mr McL Hunn, referred to the commencement of the Toradol and Promethazine treatment and said that the fat necrosis was induced by a chemical reaction to the analgesic drugs injected for pain relief. Pain management specialist, Dr Cherry, said that the analgesic prescription had been "illogical and excessive". Pain management specialist, Dr Michael Jackson, said that repeated injections of Toradol led to the abscesses and that this was a complication which had been noted in the literature. The defendant's case, although at the moment lacking in detail and precision, is nonetheless viable.
Counsel for the prospective third parties and counsel for the plaintiff, who also opposed making of the orders sought, submitted that the failure to commence the contribution proceedings within time and the delay thereafter had not been satisfactorily explained. In February 1996 the twelve month limitation period had not yet expired. The defendant had the plaintiff's writ and had legal representation and the backing of an insurer. It had decided that the fat necrosis amounted to a "novus actus interveniens". The law on the subject was clear. The defendant would have to establish that the medical treatment administered by Dr Mather was inexcusably bad; outside the bounds of what any reputable medical practitioner might prescribe; so obviously unnecessary or improper that it amounted to a gratuitous aggravation of the injury; or in other words was the result of grossly negligent medical treatment: Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522. If the medical treatment administered did not satisfy this sort of description, but was nonetheless negligent there would be no "novus actus interveniens" and the defendant would be liable at first instance for the fat necrosis but with an entitlement to recover contribution from the negligent doctor. In February 1996 a defence was yet to be delivered and there was no impediment under the Act or the Rules of the Supreme Court 1965, to filing and serving a third party notice. The defendant could have written to the plaintiff's legal practitioner seeking confirmation within a short time frame that damages would not be claimed in respect of the fat necrosis. Failing such confirmation the prudent course was to issue contribution proceedings.
There is no affidavit from an officer of the defendant company; from an officer of the defendant's insurance company; nor from the legal practitioner who was acting for the defendant at the time. The defendant had plainly formed the view that Dr Mather's treatment was negligent and that it ought not be left to foot the damages bill in respect of the fat necrosis. There is no assertion that the defendant was at the time ignorant of the availability of contribution proceedings nor is there any assertion that the defendant was at the time ignorant of the time limit which applies under the Act. Why the defendant apparently adopted a wait and see approach until the particulars of injury, loss, expense and damage were delivered has been left totally unexplained. All of the evidence in support of the application is comprised in the affidavit of the defendant's current legal practitioner and the annexures to it. The affidavit contains only the following information as to the failure to commence the proceedings in time:
"It does not appear that the defendant or anyone on its behalf had given active consideration to the joinder of the proposed third parties in this action until I raised the issue with the defendant's insurer on 26 October 2001 …
…
I depose to the contents of this affidavit from my own knowledge, information and belief. The sources of my information and belief are the contents of my firm's file in relation to this action and the discussions I have had which are referred to in this affidavit."
There is no reference in the affidavit to any discussion with an officer of the defendant; nor with an officer of the defendant's insurance company; nor with the defendant's former legal practitioner in relation to the delay. Accordingly, the evidence on the matter is based solely on the contents of the file of the current legal practitioner. All that can be made of the statement in the affidavit is that the documents, whatever they are, which are contained on that file are not sufficient to make it appear to the practitioner that "active consideration" had been given to the joinder of the third parties. I do not know why, within time the plaintiff was not asked to confirm that no claim would be made in respect of the fat necrosis. I infer, as was submitted by counsel for the prospective third parties, from the lack of explanation; from the fact that the defendant had legal representation and from the fact that the defendant regarded Dr Mather's treatment as negligent and causative of injury that it was sufficiently confident about the intervening event defence (and presumably possible other defences such as limitations) not to trouble itself with the timely consideration of other options. This inference is consistent with the legal practitioner's file containing no documents showing that "active consideration" was given to contribution proceedings. Accordingly, I find that the defendant, within the relevant limitation period, elected to adopt its proposed defences to the exclusion of all else, at least for the time being. A conscious and informed decision, albeit perhaps somewhat cavalier or rash, not to consider taking contribution proceedings within time strongly mitigates against a favourable exercise of the discretion.
In addition, the defendant could have had no doubt from April 2000 that the plaintiff was pursuing damages in respect of her fat necrosis and it took more than two years after that before the application to extend time was made. I have already set out in detail the information which was presented in an attempt to explain this delay. It is vague and imprecise. The defendant, by then already being many years out of time, ought to have done all within its power to promptly gather together what information it could to support contribution proceedings and an application for an extension of time. I agree with the submission of counsel for the plaintiff (who wants the action set down for trial quickly) that the steps taken after April 2000 carried with them no sense of urgency. Things should have happened a lot more quickly than they did. There is no suggestion that the defendant was unaware of the need for prompt action. There is no suggestion that the defendant was ill equipped to press the matter with its legal representatives. The proper conclusion is that the defendant acquiesced in the slow progress of the prospective contribution proceedings. This also works against the defendant securing a favourable exercise of the discretion.
One of the rationales for the imposition of limitation periods is a legislative recognition that the public interest is best served by having disputes settled as quickly as possible. The plaintiff in May 2002 convened a compulsory conference with a view to having her action certified as ready for trial. Particulars of damage and proofs of evidence have been delivered on behalf of the plaintiff. I have no reason to think that the plaintiff's assertion that she is ready for trial is unreasonable. The only basis put forward by the defendant for resisting the setting down of the matter for trial is its wish to commence the contribution proceedings. The defendant has not suggested that there are other reasons why the trial cannot occur promptly. The defendant has not suggested that any contribution proceeding should be heard after the trial of the action between the plaintiff and the defendant. To do so would give rise to a possibility that in the principal action there might be a finding by the judge or jury that Dr Mather's treatment caused the plaintiff's condition and was negligently administered, but was not so grossly negligent as to enable the defence of intervening event to succeed. In subsequent contribution proceedings the judge or jury might conclude that the plaintiff's failure to sterilise the needles or the Sorell doctor's prescriptions accounted for the condition or, alternatively, that the treatment, although causative of the condition was not negligent. If I grant to the defendant an extension of time the result is likely to be that it will hold up the plaintiff in the prosecution of her claim. This would be contrary to the legislative policy that disputes be settled quickly. This is another factor which counts against the grant of an extension of time. Counsel for the defendant submitted that as the plaintiff's cause of action dates back to February 1991 it is so old that further delay is not such an important feature as it may be in many cases. The converse proposition could be put with equal if not greater force, namely, that because the action is already so old it is especially important to avoid further delay.
It was not contended that the prospective third parties would be prejudiced in their defence if an extension is granted. There is no suggestion that Dr Mather's treatment records have been lost. In fact the plaintiff commenced separate proceedings against Dr Mather within three years of his treatment and so it is not a case where notice of the complaint did not issue for many years. In considering the matter I will proceed on the basis that the delay will not prejudice Dr Mather or his company in the defence of the proposed proceedings.
On the one hand there is an arguable case and no prejudice to the prospective third parties. On the other hand in assessing any injustice to the defendant in leaving the time bar in place I need to take into account the failure by the defendant to directly state why contribution proceedings were not commenced in time and the failure of the defendant to give a satisfactory explanation for the delay between April 2000 when it became a virtual certainty that the plaintiff would pursue the claim for the fat necrosis and July 2002 when an application was filed. I have found that the defendant within the limitation period elected to rely on the intervening event defence (and any others) to the exclusion of the option of timely contribution proceedings and this feature tends strongly against the grant of an extension of time. I have also found that contribution proceedings are likely to delay the trial of the plaintiff's action. The onus is on the defendant and the circumstances do not persuade me that the justice of the case rests with the grant of the extension sought. The application will be dismissed.
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