Fielding v Sandes

[1999] NSWCA 316

CITATION:	Fielding v Sandes [1999] NSWCA 316
FILE NUMBER(S):	CA 40283/98
HEARING DATE(S):	30/08/99
JUDGMENT DATE:	13 October 1999
PARTIES :	Ian Robert Fielding v John Elridge Sandes
JUDGMENT OF:	Priestley JA at 1; Fitzgerald JA at 2; Davies AJA at 30

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	54/97
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

COUNSEL:	M J Jenkins (Appellant) J R Dupree (Respondent)
SOLICITORS:	Blake Dawson Waldron (Appellant) Higgins & Higgins (Respondent)
CATCHWORDS:	Limitation period; appeal against grant of extension; inadequacy of reasons and error of principle by primary judge; application for extension reconsidered by Court of Appeal; consideration of legitimate exercise of discretion to extend;sections 57B and 58 of Limitation Act 1969.
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40238/98
DC 54/97

PRIESTLEY JA
FITZGERALD JA
DAVIES AJA

Wednesday, 13 October 1999

Ian Ronald FIELDING & ANOR v John Eldridge SANDES

JUDGMENT

1   PRIESTLEY JA: I agree with Fitzgerald JA. 2   FITZGERALD JA: On about 12 September 1979, the respondent attended the Outpatients’ Department at the Mater Misericordiae Hospital with a very painful right foot. An x-ray was taken, and Doctor Affleck informed the respondent that he had a needle embedded in his foot, and that he should return on the following day when it would be removed by a surgical procedure. On the following day, 13 September 1979, following a further x-ray, an attempt was made to remove the needle under a general anaesthetic by two young doctors under the supervision of the first appellant, Dr Fielding. According to the respondent, after he regained consciousness following the operation “… the doctors said to me words to the effect, ‘we stuffed it up, we’ll have to send you to Royal North Shore’”. 3   Later that day, the respondent was admitted to the Royal North Shore Hospital. On the following day, 14 September 1979, another operation was performed and the needle was removed. An Image Intensifier was used in connection with that operation. 4   On Wednesday, 22 April 1998, a District Court judge sitting at Lithgow ordered that the limitation period for causes of action for negligence alleged by the respondent against the appellants be extended to 22 May 1998. This is an appeal from that order, by leave of this Court , differently constituted. 5   This appeal has been conducted on the basis that the appellant North Sydney Area Health Service would, but for the limitation period, be liable to the respondent for any negligence proved at either hospital. 6   It is now almost twenty years since the alleged negligence of the appellants, and it is not in dispute that the limitation period under the Limitation Act 1969 had expired more than a decade prior to the respondent’s application on 22 April 1998 for an order that that limitation period be extended. The Court had a discretion to extend the period if:

“(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the [respondent] until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and
(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period …” Limitation Act , subss58(2).

Subsection 57B(1)(b) specifies matters which are included in “the material facts relating to a cause of action”, and other provisions in s57B establish other matters for the purposes of subs58(2).

7   The respondent did not dispute that he had the onus of establishing that, “until a date after the commencement of the year preceding the expiration of the limitation [period]” for his alleged causes of action against the appellants, (i) he was unaware of a material fact (ii) which is of a decisive character (iii) which was not within his means of knowledge before the specified date, Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, e.g. per Dawson J at 256. and that the statutory discretion should be that be exercised in his favour in accordance with the principles established by the decision of the High Court in Brisbane Regional Health Authority v Taylor. (1996) 186 CLR 541. 8 The brief reasons for judgment of the District Court Judge who made the order against which this appeal is brought were given on the day on which his Honour heard the respondent’s application for an extension of the limitation period. The respondent submitted that this Court should take account of the circumstances in which judges on circuit perform their duties and the expectations of the communities in which they sit. No doubt, the task which must be performed is frequently difficult. Nonetheless, the law must be applied, and adequate reasons must be given. In the present case, neither requirement was fulfilled. 9 It is unnecessary to quote extensively from what his Honour said. The essence of the approach adopted is contained in the following sentence:

‘I have got to, in order to refuse the discretion to the [respondent], take the view that there is clearly no cause of action available and that it would be not just and reasonable to grant the [respondent] the right to have his case heard before a proper Court.”

10 In proceeding in that manner, the District Court judge erred in principle. 11 Accordingly, the appeal must be allowed. The respondent asked that, in this event, the matter be returned to the District Court for reconsideration. However, such a course would merely increase the costs unnecessarily. There is no suggestion that all relevant material is not available to this Court, or that a District Court judge would be in any better position than this Court to exercise the discretion under subs58(2) of the Limitation Act. 12   It is necessary for that purpose to say something more of the facts. 13   After the needle was removed in the operation at Royal North Shore Hospital on 14 September 1979, the respondent was discharged on 20 September. The Discharge Summary of that day includes the following statements:

“Post operatively the right foot was bandaged, elevated and the patient was commenced on intramuscular and then oral Penicillin and Flucloxacillin. Post operatively the patient became febrile and developed a painful, sore right sole of his foot. He developed a wound infection on the right sole of the foot and wound swabs grew a heavy growth of Staph epidermis and Diptheroids.
The patient was discharged to have daily dressings by the District Nurse and was to continue on Flucloxacillin and Penicillin post-operatively at home. Treatment on discharge included Digesic prn for pain, Penicillin 500mgmQ6H, Flucloxacillin 500mgmQ6H. Follow up was to be in the Trauma Clinic on 26/9/79.”

14   The respondent was readmitted to the Royal North Shore Hospital about a month later because the wound in his foot was infected. Another operation was conducted on 23 October. The operation chart contains the following:

“Operative Procedure:
Debridement of wound. Small defect in the sole under the fifth metatarsal head was left and packed with gauze. No significant abscess was located.
Planned Post-Operative management:
The patient is to stay in hospital for 24 hours and then to go home and have further Boracic dressings from district nurse, to review in one week in the Trauma Clinic.”

15   The Discharge Summary of 24 October 1979 is not entirely consistent with the statements in the Operation Chart. The Discharge Summary provided:

“This man who had previously had a foreign body removed from the sole of his right foot was readmitted because he had developed a deep would infection in the right sole of his foot.
There was an area of induration and fluctuation on the right sole of his foot and this area was exquisitely tender and the patient was unable to walk on the foot.

The patient was taken to theatre on 23/10/79 for debridement and drainage of an abscess on the right sole of his foot.
The patient was discharged home the next day with the right foot dressed and on Erythromycin 500mgm sixth hourly orally. He was to continue daily Boracic lint dressings with the District Nurse and was to be reviewed in the Trauma Clinic on 29/10/79”

16   The respondent continued to experience pain, and a further operation was performed at the Royal North Shore Hospital on 2 September 1980 in which scar tissue and some digital nerves were excised. 17   Pain and swelling persisted and, in 1981, the respondent developed a claw foot deformity. 18   In August 1985, the respondent, who was then aged 52, ceased his work as a commissionaire because of ongoing pain in his right foot. 19   In the period between the removal of the needle in September 1979 and his cessation of work, the respondent consulted a number of medical practitioners, none of whom suggested that he had been treated negligently. The general opinion was that it was doubtful whether further surgery would improve his condition. 20   According to the respondent, after he retired, he consulted a solicitor at the Community Legal Service in Katoomba, who did not obtain any additional medical opinion but advised the respondent that there was not much which could be done. The limitation period had quite likely expired. 21   For some unexplained reason, the respondent consulted his present solicitors more than a decade later, in May 1997, “… to get advice about any entitlement I might have to compensation”. 22   A report dated 11 August 1997 was obtained from Dr John Harvey Drew, a surgeon. Dr Drew agreed with the earlier medical opinion that there is little that can be done to assist the respondent. He considered that there was deep infection in the sole of his foot following the operation at Royal North Shore Hospital on 14 September 1979, and that the infection probably caused fibrosis or scarring involving the small muscles in the sole of the foot. He said that it was “ … difficult to say whether infection entered at the time of the first or second operation [i.e., the operation at the Mater Misericordiae Hospital or the first operation at Royal North Shore Hospital] or whether it was present before the first operation [at the operation Mater Misericordiae Hospital]. The blood count was normal immediately before the first operation but this does not exclude the possibility that the infection was already present and was causing the pain and swelling in his foot”. 23   Later in his report, Dr Drew said:

“The question is whether the infection of the foot was caused by the first or second operations or whether it was present before the first operation. Unfortunately there is not much detail regarding these operations and there is no indication in the records that proper procedures to avoid infection were not carried out. Unfortunately, foreign bodies cannot always be found at operation even when an Image intensified is used.
One could say that the Mater Hospital could have referred him to Royal North Shore Hospital so that an Image intensifier could have been used during the firs operation and this would have possibly avoided the necessity for an extra operation. In this way there would have been less opportunity for infection to occur.”

24   The respondent’s argument is difficult to formulate. As best as I can summarise its substance, it was that the quoted extracts from Dr Drew’s report both constituted “evidence to establish” causes of action against each appellant and disclosed to the respondent a “material fact of a decisive character relating to [each] cause of action [which] was not [previously] within the means of knowledge of the [respondent] …”. No elucidation is provided by the respondent’s statement of claim, in which the alleged negligence is “particularised” in generalisations. 25   The connection between the needle in his foot, the operations conducted and other treatment provided and his pain and deformity must have been apparent to the respondent. On his evidence, doctors at the Mater Misericordiae Hospital who were supervised by the appellant Dr Fielding made an admission of fault to him on the day of the very first operation (13 September 1979). He first consulted a solicitor at about the time when the limitation period expired. The information which he provided to that solicitor as the basis of his request for advice is unknown. That apart, the respondent seems to have obtained medical advice and treatment, and then, so far as the material reveals, out of the blue sought another legal opinion 11 or 12 years later. 26   On the material I cannot identify any potential cause of action arising out of the respondent’s treatment at the Royal North Shore Hospital. 27   Insofar as Dr Drew’s report raises the possibility of negligence by Dr Fielding, the respondent has been aware of an admission of fault in relation to the operation of the Mater Misericordiae Hospital since 13 September 1979. 28   In these circumstances, the discretion to extend the limitation period cannot legitimately be exercised in favour of the respondent to justify the extension granted by the District Court. 29   I would allow the appeal with costs and dismiss the application to the District Court with costs. The respondent, if otherwise qualified, should have a certificate under the Suitors Fund Act 1951. 30   DAVIES AJA: I agree with Fitzgerald JA.