Evans v Bourke & Ors No. DCCIV-95-571 Judgment No. D3771

[1998] SADC 3968

EVANSv BOURKE & ORS.

Civil

Judge Lowrie

Background

The plaintiff alleged that on 21 May, 1989, she was driving her Ford Falcon sedan vehicle along the Sturt Highway travelling from Mildura to Renmark and at the same time a Kenworth Lorry car carrier driven by Bourke was travelling along the Sturt Highway immediately in front of her vehicle.  The plaintiff alleged that Bourke caused his vehicle to halt across the Sturt Highway forcing her vehicle to stop, then alighted from his vehicle, threatened the plaintiff whilst armed with an iron bar and then attacked her vehicle with this instrument.  The plaintiff further alleged that Bourke jumped on the bonnet of her vehicle and placed his face against the windscreen in a threatening manner and banged his fists against the windscreen.  The plaintiff said that she then managed to manoeuvre her vehicle around Bourke’s vehicle and eventually arrived at the Yamba roadhouse where she was assisted by the proprietors and subsequently collapsed.

The plaintiff  alleged that she has suffered permanent injury, loss and damage because of these events.  She outlined how on 21 May, 1989, she was admitted to the Renmark Hospital for treatment for shock and was subsequently transferred to a private hospital in Adelaide and since that time has suffered what has been described as a “post-traumatic stress disorder”.

The date of the accident was 21st of May 1989.  The plaintiff has three years to commence her proceedings, and, such proceedings should have been commenced by the 21st of May 1992.  In fact the proceedings were not issued until the 18th of May 1995 thus a period of a few days prior to three years out of time.

The plaintiff in her Statement of Claim sought an order extending the time in which to institute her out of time proceedings and pleaded as follows:-

“Particulars Of Grounds Upon Which The

Plaintiff Seeks An Extension Of Time

38.1...... On the 17th day of May 1995 the plaintiff had read to her the draft Statement of Claim  which was subsequently filed herein on the 18th day of May 1995.

38.2As a result of having the draft Statement of Claim read to her and as a result of a discussion with her solicitor the plaintiff learned on the 17th May 1995 that Dr Kalnins had diagnosed her as suffering from a Post Traumatic Stress Disorder at the time she was discharged from the Fullarton Private Hospital on or about the 26th day of June 1989.

38.3...... In all the circumstances it is just and equitable that the plaintiff be granted an extension of time.”

This matter was originally listed before me for a determination of that preliminary point.  The  hearing commenced on the 7th of March, 1997.   Mrs Evans  gave evidence and was cross-examined.    Her solicitor,  Ms Jeffries commenced to give her evidence and then difficulties arose in relation to  items of discovery.  The matter was adjourned to enable the parties to comply with certain directions as to discovery.   Eventually I gave certain directions in regard to matters which were to be discovered.  Consequent upon that direction the matter again came on for hearing on 9th February 1998.  On this occasion Ms Jeffries continued with her evidence and was cross-examined.   I allowed the plaintiff to be recalled for further cross-examination,  and,  the parties addressed me on the merits of the application.

Evidence of the Plaintiff

The plaintiff outlined briefly her background and occupation at the time of this quite horrific incident on 21st May 1989.  The plaintiff outlined that immediately after the incident she sought the assistance of Dr. Rosenthall at Renmark.  She said she was in a distressed state and was admitted to the Renmark District Hospital where she remained overnight, and, the following day returned to Adelaide and was then admitted to the Fullarton Private Hospital.  She said she was still in a very distressed condition and at that time came under the care of Dr. Kalnins.  She said she received medication for some six to eight days in hospital with restrictions on visitors. She regarded herself in this period as being heavily drugged and in an extremely distressed state.  She confirmed at that time she was treated by  Dr. Kalnins.  She has very little memory of the content of the discussions with Dr Kalnins.  She was subsequently discharged from hospital and said she returned to work with her employer but did not cope well with her duties.  She said she lacked concentration and was constantly distressed.

The plaintiff said that in effect she endeavoured to cope with her duties.  It was in this time that she was approached by police concerning the prosecution of one of the drivers involved in the incident and this caused her much distress which she said led to an occasion in 1990 when she endeavoured to take her own life.  She said she was at this stage referred to a psychologist Dr Edwards and he in fact referred her on to another medical practitioner Dr Duncalf who she later realised was a psychiatrist.  She said in her discussions with Drs Edwards and Duncalf  they explained to her what they believed was the diagnoses of her condition.  The plaintiff said it was in this period that she heard the term ‘Post Traumatic Stress Disorder’ in relation to her condition.  The plaintiff said she had also seen a Dr White,  a general practitioner and  as well was referred to a Professor  McFarlane.  She said she  discussed with each of these practitioners the background details and  her ongoing difficulties.   The plaintiff  had  treatment in this time including  attendances at Hillcrest, The Flinders Medical Centre, and, the Queen Elizabeth Hospitals.  The plaintiff said after she had seen Dr Edwards  she became aware that she could make a claim for compensation in Victoria as a victim of crime and this was done through a police liaison officer of the Victorian Police Department, a Mr Reid.  Dr Edwards referred her to a solicitor in Adelaide.  The case for compensation in Victoria proceeded and she was obliged to attend Victoria.  Dr Edward accompanied her and she was awarded compensation.  She said she received several thousand dollars together with her medical expenses.

The plaintiff engaged solicitors Scammell & Co and attended a Ms Douska Zaknik and requested she act on her behalf in this matter.  Subsequently, Mr Catherine Jeffries  acted for her in place of Ms Zaknik.    She said her instructions to the solicitors were to proceed with the claim for compensation with regard to her injuries.  However, she said  at all times she had difficulties in talking about the incident to her solicitors.   The plaintiff said she regarded her state of health as being continually heavily drugged.  She said she would not talk about the incident when questioned by  her solicitors and did not want to see any documents.   The plaintiff was aware that there were many medical reports that her solicitors had obtained and it was her instructions that she did not want to see those reports. She said she was finding it hard enough “just to get through my days”.  Consequently the plaintiff never saw any of the numerous medical reports that had been obtained by her solicitors, nor,  in accordance with her instructions were medical reports sent to her.

Her reason for not perusing such reports was that she felt that they would aggravate her ongoing problems.

The plaintiff said she remembered attending the office of her solicitors and seeing a Ms Catherine Jeffries and having a Statement of Claim read to her.  The plaintiff said she was aware that proceedings had been issued against the drivers and felt  the time when she saw Ms Jeffries was probably April or May of 1995.   The first occasion she said Ms Jeffries did present a document and she went through it with her.  She explained that Ms Jeffries would read out the document and it related to the actual incident and her injuries.  She said she recalled the May 1995 attendance at the office of Ms Jeffries and again she had a document which was read out to her.  She said at this time she remembered making comments and was asked specifically (page 39)

“Q.... Can you recall as to whether you made any comments in relation to the topic of the injuries that she was reading to you

A      Yes I did

Q...... Did she, in the course of reading information to you, refer to the fact that you’d been in the Fullarton Private Hospital.

A.     Yes, she did.

Q...... In the course of reading our information as to the Fullarton Private Hospital, did you become aware of some information which you had not previously known.

A.     Yes, I did.

...

Q...... What information did you become aware of in the course of reading out the information which you had not previously known.

A.That whilst I was treated at the hospital that I had post  traumatic stress disorder.

Q...... Can you remember now the words which were read to you which indicated that.  If you can’t remember the exact words, please say so.

A.     I don’t remember the exact words but the context -

Q.     Tell us what you can remember.

A...... That Mr Kalnins had diagnosed me post traumatic stress disorder and I said that’s not correct, I only ever thought I had shock, bad shock, that’s all I was ever told.

Q.Did you have a discussion with Ms Jeffries about the fact of doctor Kalnins holding a view about post traumatic stress disorder.

A.     Yes, I did.

Q...... Can you remember what was said in relation to that.  I think you’ve already indicated your response.  What, if anything, was said by Ms Jeffries so far as you can recall.

A.She said that was the opinion of Dr Kalnins.  I said that’s not correct and that’s all I remember.

Q...... Up until that time, that is the time that the information was discussed between you and Ms Jeffries, did you have any knowledge of Dr Kalnins’ view in relation to post traumatic stress disorder.

A.     No.

Q...... What was your view about his diagnosis up until that time of your condition .

A.     I just thought I was treated for shock, I was hospitalised for shock.

Q...... Prior to the date when you were speaking with Ms Jeffries, had you seen or read any medical report prepared by Dr Kalnins.

A.     No.

Q.     Had you had read to you any medical report prepared by Dr Kalnins.

A.     No.”

The plaintiff was cross-examined about the advice from her solicitor Miss Zaknik and subsequently Ms Jeffries.  Her memory of these events at that time was vague and no doubt effected by  her medication.  In cross-examination the plaintiff confirmed that Mr Edwards had told her of the condition diagnosed as a post traumatic stress order when she had seen him in November 1990 and also confirmed she had had many attendances on Dr Duncalf the psychiatrist, and, again that she was advised of the same diagnosis after her attendances upon him.  She confirmed that the amount received from the Victorian Compensation Tribunal in July 1991 was the sum of $7,500  and there were expenses of $6,719. 

The plaintiff was uncertain as to when she first consulted her solicitors in South Australia.

Ms Jeffries outlined that she commenced work as a solicitor employed by the plaintiff’s solicitors on 17th May 1994, and, at that time Ms Zaknick commenced maternity leave, and, consequently the responsibility of the plaintiff’s file was accepted by Ms Jeffries.  Ms Jeffries said she perused the file which included correspondence, file notes and medical reports and drafted proceedings.

A draft statement of claim was produced by Ms Jeffries with the hand written endorsement on the front “S of C seen by Mrs Evans”.  Ms Jeffries explained that S of C means “statement of claim” and that this endorsement was made shortly after Mrs Evans had seen the statement of claim.  Ms Jeffries said this statement of claim was not forwarded to the plaintiff but read to her. The reason for this course was because of certain notes in the file including a note that the names of the drivers were not to be given to the plaintiff.  After this statement of claim had been read to her Ms Jeffries then dictated a file note.  The file note was tendered and revealed that the statement of claim was read to Mrs Evans on the 28th of April 1995.  Ms Jeffries said from this file note that she had a specific memory of the occasion of the 28th of April 1995 and recalled reading the statement out to Mrs Evans, and, remembering that the plaintiff had very little memory, and, also said to her that she had never read any of the medical reports.  There were matters mentioned to her unrelated to her claim.  Ms Jeffries said after this occasion the statement of claim was forwarded to counsel to settle.  Ms Jeffries produced in a bundle three draft statements of claim that were prepared and the third draft noted “Amended Draft copy sent Frayne 1.5.95”.

Ms Jeffries said she subsequently received from counsel the settled statement of claim.  This was a facsimile transaction from Mr Frayne to Scammell & Co dated 17th May 1995 and attached to it was the settled summons and Statement of Claim and Ms Jeffries said she then attended Mrs Evans and went through that statement of claim.

The draft statement of claim was lengthy document but followed a similar pattern including naming all  drivers and the company, the alleged employer. Finemore Transport Pty Ltd.  The Statement of Claim set out the allegations of the incident, the allegations of negligence against the drivers and the company, particulars of injury, loss and damage and a simple recitation of the claim for damages, aggravated damages, interest and costs.

The Statement of Claim refers to the fact that “In early December 1990 the plaintiff was diagnosed as suffering from a severe post traumatic stress disorder”.

In regard to the settled Statement of Claim Ms Jeffries said she attended Mrs Evans and because of matters then disclosed by Mrs Evans she made a number of amendments to the Statement of Claim.  Particularly notations on paragraph 27.3, 27.4, 27.6, and 27.7.  They were notations made by her in the presence of Mrs. Evans.  Ms Jeffries in her evidence said as follows:-

“A.... ...  As I was running through that paragraph with her I said to her what was in that paragraph, namely that she was diagnosed as suffering from a post-traumatic stress disorder.  She said ‘I wasn’t, no I wasn’t initially diagnosed,’ in that fashion, and so what I’ve done is strike out the words ‘she was diagnosed as suffering a post-traumatic stress disorder’ and written in there ‘acute anxiety.’

Q.     What was it that you wrote in the words ‘acute anxiety.’

A...... Because that’s what she told me she was diagnosed as at the Fullarton Private Hospital as having.

Q.In relation to the notations that you’ve made in para.27.4, why was it that you made the notations that appear there.

A...... The same reason, I’ve simply struck out ‘associated with her post-traumatic stress disorder,’ and there’s a sort of grammatical one there as well ‘because of her symptoms,’  rather than ‘because of the symptoms.’

Q.     Why was it that you struck that out.

A.     The grammatical one?

Q...... Well perhaps firstly, associated with her post-traumatic stress disorder. Why do you strike that out.

A.Because she told me that her understanding was that she hadn’t been diagnosed with having a post-traumatic stress disorder early in the peace.

Q.     In relation to para.27.6.

A...... Same again.  I’ve then struck out associated with the post-traumatic stress disorder and that’s because she told me that she wasn’t diagnosed as having one initially.

Q.     There’s grammatical change in relation to that as well.

A...... There is.  Replacing the words ‘of the’ in front of symptoms with ‘her symptoms’.

Q.     Any relation to para.27.7.

A...... Again, I’ve struck out the words ‘associated with her post-traumatic stress disorder’ and there’s ‘her symptoms’ instead of ‘the symptoms’.”

Ms Jeffries outlined that because of that information from Mrs Evans she then perused the initial reports of Dr Kalnins and then advised  Mrs Evans that she believed she had in fact been diagnosed as suffering from a post traumatic stress disorder at that time.  That information was in a letter of report from Mr Kalnins dated August 1992.  She said as a result of this information being relayed to Mrs Evans “She was upset about this as well and said something like ‘Well if I was he didn’t tell me that’ meaning Dr Kalnins.  She confirmed again that she did not read out the full context of the Dr Kalnins’ report.  After this attendance which was on the 17th of May 1995 Ms Jeffries said she made a file note outlining what had occurred on that occasion.

Ms Jeffries said that in May 1995 there was much uncertainty as to which the Finemore Company had employed the various drivers.  There had been subsequent amendments to the Statement of Claim in respect to those companies.  There have been numerous interlocutory proceedings in this action including applications to strike out as well as a number of applications to amend the pleadings.  Eventually an amendment to the Statement of Claim was made seeking an extension of time at which to bring the proceedings and relying on the alleged material fact of the plaintiff not being aware of the early Kalnins diagnosis until 17th May 1995.

I accept the evidence of Mrs Evans as confirmed by her solicitor.  In those early years following the incident and  particularly after Mrs Evans had ceased in her employment her condition appears to have deteriorated as apparent from the considerable medical care and significant medication.  The plaintiff appeared to be endeavouring to ignore or block out the incident from her mind.  Consequently, the  direction to her solicitors not to send to her copies of medical reports or remind her of the names of the drivers.   The plaintiff readily admitted, after coming under the care of Dr Edwards and Dr Duncalf that she  was aware of her then  diagnosis as being one of a  post traumatic stress disorder.

I accept her evidence that when Ms Jeffries read out to her in May 1995, Dr Kalnin’s diagnosis, that she had never been informed that this diagnosis was made at or immediately following her period of hospitalisation at the Fullarton Private Hospital.  This lack of knowledge was immediately made known to her solicitor when she was confronted with this allegation from the settled Statement of Claim.

The plaintiff’s Counsel have referred me to the leading familiar case of Sola Optical (Australia) Pty. Ltd. v Mills (1987) 163 CLR 628 at 637 and the reasons for judgment in that case on Section 48(1) of the Limitations of Action Acts and, as well, reviewed a number of decisions which had caused some debate prior to that time.

The facts of Mrs Mills’ knowledge of the contents of a number of medical reports on the extent of her disabilities are well known.

The High Court noted the dissenting Judge in the Full Court had placed reliance upon the fact that Mrs Mills was in fact aware of the prior assessment of close to 100% disability, but in the subsequent report the percentage was less and therefore not a  material fact.  However, as the Court pointed out the subsequent report was more than that assessment as  it commented upon the functional capacity of the respondent’s arm and it was material on the issue of damages and she had learnt of that assessment after that letter was read to her.  Such a fact was material to the issue of damages.

I accept the plaintiff’s evidence that after her period in the Fullarton Private Hospital she did in fact return to work but it appears her condition  thereafter deteriorated.  Again I accept she was first advised of her condition as suffering from a post traumatic shock disorder by Dr. Edwards in late 1990 but the first time she was aware that Dr Kalnins had also made this diagnosis during her first period of hospitalisation in May 1990 was the occasion when Ms Jeffries had read out to her this material in the Statement of Claim on 17 May 1995.  This finding must mean that this is a fact  material to her case to be advised on this date that this was in fact her condition within a week or so of the incident and not when her health had deteriorated after her attempt to return to  work.

It could not possibly be suggested that   this is a contrived situation as is evident in some of these cases.   Rather it was a spontaneous disagreement with the written material in the Statement of Claim.

Counsel for the defendant has referred and placed much reliance on the recent judgments of the High Court in Brisbane South Regional Health Authority v Taylor (1939) ALR 1 in relation to a similar statutory provision in Queensland.

Counsel for the defendant has suggested that since Taylor’s case the emphasis in these applications has changed and particularly in relation to prejudice with an onus more on the plaintiff to justify the successful application of the Court’s discretion.

Defence counsel was critical of the three year period of delay.   It was apparent in this time the respondent was under continual medical care.  I note the initial ongoing confusion in the ascertainment of the actual identity of the employing company of the various drivers.  However, the period is significant. It probably has no bearing but I note the incident occurred near Mildura and if proceedings were to be instituted in  Victoria the relevant time to bring such a claim is six years. 

Defence counsel said there was no reason for this delay because similar diagnosis by subsequent doctors meant that the current allegation is not a fact material and the application should not succeed.  Taylor’s case was  concerned with an alleged incompetent diagnosis and there was approximately a fifteen year delay before the proceedings were issued.  The District Court Judge who initially heard the matter viewed the prejudice as suffered by the Hospital as serious because the inability to locate the doctor in question, as well as a vexed  question of  medical notes between the patient and doctor, and, consequently viewed that prejudice as rendering a fair trial improbable and  refused to allow the matter to proceed.  The decision was overturned by the Full Court and the matter then went on to appeal.  The Full Court held that the finding of  a fair trial was impossible or improbable was incorrect.

The learned Justices of the High Court have written a number of judgments.  Dawson J. agreed with MCHugh J.    Justices Toohey and Gummon wrote a separate decision all overruling  the Full Court finding,  Kirby J dissenting.

What is apparent from the judgments is that  a long period of delay, such as fifteen years, must result in  prejudice because of the inability to  recall  events, notes and conversations.

The fourth defendant did not present any evidence of prejudice.  When proceedings were issued  the defendant Bourke was served whilst in prison.  One of the other defendant drivers, I am told, is represented by solicitors. Counsel for the defendant pointed out that the fourth defendant may be in a difficult position because an allegation that the drivers were very much on a frolic of their own and the issue of vicarious liability is debatable and suggested that the likelihood of getting these drivers to assist the defendant in preparation of its defence is impractical.  It seems to me that probably that comment would have applied had the  proceedings been commenced within the three year period.  When counsel opened he commented that one driver was charged with a criminal offence and the Company “took action regarding the employment of the drivers” after the incident.  This statement was not the subject of any comment by counsel for the defendant so it would appear that the Company was aware of the allegations immediately after the incident. I do not view such a suggestion as being prejudicial.  Counsel mentioned that after a seven year period there is no obligation to keep records for taxation purposes. There was no evidence of any disposal of relevant records by the Company.

Counsel for the defendant placed weight on the comments of Justice McHugh in Taylor’s  case at page 11 in regard to the potentiality for prejudice and felt comments particularly applied to the factual matters in this case.

I note that Judges Toohey and Gummon commented that:

“The real question is whether the delay has made the chances of a fair trial unlikely.  If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

This is the issue in all of these cases.  In Taylor’s case there was the long delay of fifteen years, but as the Learned Judges pointed out, even if the doctor in question could be located the issue which then arose was the ability to recall the notes in question.

The plaintiff commenced further proceedings on the 21st March 1997 being action number 349 of 1997 against Bourke and the defendant company.  In this action the plaintiff sought an extension of time to institute the proceedings upon the grounds of the discovery of certain material facts.  On or about the 25th of March 1996 the defendant subsequently took action to have such action dismissed on the  grounds that such proceedings were an abuse of this court’s processes.  On the 19th of December 1997 I held that the application was premature.

Counsel for the defendant did comment and was critical of the second application being action 349 of 1997, a further application by Mrs Evans seeking an extension of time and raising what was simply called “other” material matters and said that the plaintiff was having “two bites of the cherry”. 

I have already commented on that action and felt that an action to strike that matter out as an abuse of process is premature.

However in the circumstances of this case I do not believe any real prejudice has been established by the defendant.   Nor do I believe a delay will have in any way interfered with the chance of a fair trial.

Having held that the learning of the earlier diagnosis is a fact material I must concern myself as to whether I should exercise my discretion in favour of the plaintiff.

As the well known cases say many matters are to be considered in exercising such a discretion including the length of the delay, the explanation for the delay, the hardship to the plaintiff and the prejudice to the defendant and the conduct of the defendant in his litigation. 

The length of the delay is signicant.  However, clearly one has to bear in mind the plaintiff was not, I would say, deliberately marking time.  She was under considerable medical care and instituted proceedings in Victoria under the Victims of Crimes Act retained solicitors in  Victorian as well as in this State.  Clearly it was a difficult matter to determine the employees but certainly not one to take the long period of delay in question.   Clearly there is much hardship to the plaintiff if the application is not granted and the claim does not proceed as well as the nature of a likely cost order.    It is difficult to criticise the plaintiff’s conduct.  I have found that the defendant has not established  any real prejudice to now defend these proceedings.  Accordingly I exercise my discretion and grant the relief sought and make an order extending the time in which the plaintiff can bring her action to the date these proceedings were instituted.