Drage v Minister for Health - [2001] WADC 250

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DRAGE -v- MINISTER FOR HEALTH [2001] WADC 250

CORAM: WISBEY DCJ

HEARD: 18 OCTOBER 2001

DELIVERED : 22 OCTOBER 2001

FILE NO/S: CIVO 118 of 2001

MATTER :IN THE MATTER of an application under Section 47A of the Limitation Act 1935
BETWEEN: LAURENCE GEORGE DRAGE
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Limitation of actions - Legislation - Failure to commence action within prescribed time - No reasonable cause - Not just to extend time

Legislation:

Limitation Act 1935 s 47A

Result:

Leave to commence proceedings refused

Representation:

Counsel:

Plaintiff: Mr R A Harrison
Defendant: Mr D St George

Solicitors:

Plaintiff: Dwyer Durack
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

Case(s) also cited:

Akermanis v Melbourne & Metropolitan Tramways Board (1959) VR 114
Baker v Shire of Albany (1994) A Tort Rep 81-296
Bingham v England, unreported; FCt SCt of WA; Library No 960152; 22 March 1996
Black v City of South Melbourne (1963) VR 34
Carioca Pty Ltd v Water Authority of Western Australia, unreported; SCt of WA; Library No 950168; 11 April 1995
City of Gosnells v Roberts (1991) 74 LGRA 1
Cumalkous v Western Australian Government Railways Commission, unreported; FCt SCt of WA; Library No 950525; 15 September 1995
Davey v West Australian Coastal Shipping Commission, unreported; SCt of WA; Library No 7983; 5 December 1989
Fisher v Shire of Ashburton, unreported; SCt of WA; Library No 950626; 17 November 1995
Hall v Motor Vehicle Insurance Trust (1984) WAR 111
Hennessey v City of Fremantle (1995) 12 SR (WA) 360
Ion v Minister for Works, unreported; DCt of WA; Library No 3721; 7 May 1993
Kennedy v State of Western Australia, unreported; DCt of WA; Library No 3762; 24 June 1993
Lunness v City of Perth (1994) 12 SR (WA) 99
Marshall v West Australian Government Railways Commission (1994) 11 SR (WA) 148
Northey v Minister for Education (1995) 13 SR (WA) 124
Posner v Roberts (1986) WAR 1
Ridgeway v The Shire of Moora (1986) A Tort Rep 80-033
Stevens v Motor Vehicle Insurance Trust (1978) WAR 232
Thorpe v Shire of Coolgardie (1995) 14 SR (WA) 133

WISBEY DCJ: By originating summons filed 24 August 2001 Laurence George Drage (the applicant) seeks pursuant to s 47A of the Limitation Act 1935 leave to commence proceedings against the Minister for Health for damages for personal injuries sustained as a result of the negligence of the Rockingham/Kwinana District Hospital between 24 October and 27 October 1995.
Section 47A relevantly provides that no action shall be brought against any person for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority unless:
(a)the prospective plaintiff gives to the prospective defendant as soon as practicable after the cause of action accrues notice in writing in the prescribed manner; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued.
Notwithstanding, where application is made to the Court for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be was occasioned by mistake or by any other reasonable cause, or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action.
In his affidavit in support of the summons the applicant relevantly states:
1.That he sustained injury in a motor vehicle accident on 24 October 1995 and immediately thereafter was taken to the Rockingham/Kwinana District Hospital where there was a failure to diagnosis the presence of a subarachnoid haemorrhage and/or refer him for CT scanning.
2.Shortly after discharge he made a formal complaint about his treatment to the Rockingham Health Service having "made enquiries in medical text which showed that the symptoms I have suffered were symptoms of head trauma but the emergency department did not undertake a CT scan". The complaint was investigated by the Health Service manager who discussed it with the applicant and the local MLA, Mr Malborough, and asserted that there was no basis for the complaint. The Health Service manager provided the applicant with copies of the hospital records and reports.
3.In par 12 "I did not then pursue the matter because I had ongoing health problems and I had instructed my present solicitors to pursue a motor vehicle accident claim with the Insurance Commission of Western Australia arising out of the circumstances of my motor vehicle accident on 24 October 1995".
Upon resolution of the motor vehicle claim (apparently in early 2001) the applicant instructed his solicitors to refer his medical notes and reports to a medico‑legal practitioner. A medico‑legal opinion was sought on 10 May 2001 and following the receipt of an opinion on 21 June 2001 the applicant's solicitors wrote to the Rockingham/Kwinana District Hospital advising of his intention to bring a damages claim.
The applicant does not condescend to detail concerning the motor vehicle claim. He does not address that issue in the affidavit; declined to provide the Minister's advisers with a copy of the relevant statement of claim and judgment; and was not prepared to disclose the position, before me. That is of considerable significance, since it was possible for the applicant in that claim to be compensated by the tortfeasor for the consequences that flowed as a result of the failure of the hospital to perform a CT scan and institute appropriate remedial steps. See Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522.
It is on the basis of those facts that this application falls for consideration.
As s 47A indicates, for the applicant to obtain leave to commence proceedings it is necessary for him to establish that his failure to act in accordance with the requirements of subsection (1) was occasioned by:
(a)mistake; or
(b)any other reasonable cause; or
(c)that the Minister for Health is not materially prejudiced in its defence by the failure.
If the applicant is able to establish one of those pre‑conditions, it is still necessary for the Court to consider that it is just in all the circumstances to grant leave.
There is no suggestion in the papers, or indeed in argument before me, that the applicant was relevantly mistaken, but he does submit there was reasonable cause for his inaction. The cause relied upon appears to be that referred to in par 12 of the affidavit, namely that he had ongoing health problems and desired to resolve his motor vehicle claim before addressing his claim against the Minister.
I do not accept that the facts relied upon constitute reasonable cause. It is quite clear from the affidavit, and in particular from Exhibit A being the extract from the Sound Telegraph newspaper dated 12 March 1997, that the applicant concluded at an early stage that the hospital was negligent, but for reasons not disclosed, decided that the issue between himself and the Minister await the resolution of the motor vehicle claim. One gets the uneasy feeling that whether he pursued a claim against the Minister was dependent upon his state of satisfaction with the resolution of his motor vehicle claim.
It appears that the applicant was represented in the motor vehicle claim by his present solicitors, a firm with considerable experience and competence in personal injury claims. Although I have not been given the benefit of the relevant documentation relating to that claim, I have no doubt that the applicant would have claimed damages for all the sequelae consequent upon the accident, including the head injury. One cannot be critical of him so doing. It was his right and his choice, but he must accept the consequences that his choice produces.
The applicant having failed to establish reasonable cause, it is necessary to consider whether the Minister has been materially prejudiced in its defence. It is indeed correct that the hospital was made aware at an early stage of the applicant's complaints, and no doubt took appropriate steps to investigate the situation. To that extent there has not been prejudice. The philosophy behind case flow management is, however, a present recognition of the fact that delay in prosecution of an action is synonymous with prejudice. Approximately six years has elapsed since the accrual of cause of action, during which time the Minister has had no opportunity to assess the applicant's injuries or take appropriate steps to manage the claim. In particular the Minister is faced with the difficulty of determining what allowance, if any, for the cerebral consequence of the accident, was included in the agreed settlement. I am satisfied that the Minister has been materially prejudiced.
Had the applicant established absence of prejudice, he would not, in my view, have been entitled to the relief sought. He has chosen to pursue his rights in the manner referred to, and is not prepared to make full disclosure to the Minister or the Court. His conduct does not compel a conclusion that it is just to grant him the relief he seeks. The contrary is the position.