Francis v Petros - [2010] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FRANCIS -v- PETROS [2010] WADC 149

CORAM: KEEN DCJ

HEARD: 29 SEPTEMBER 2010

DELIVERED : 8 OCTOBER 2010

FILE NO/S: CIV 402 of 2008

BETWEEN: KRYSTIE FRANCIS
Plaintiff
AND
PETER PETROS
Defendant

Catchwords:

Limitation - Medical negligence - Failure to advise to defer surgery - Whether cause of action arises on surgery or when risk materialises - Whether action should be struck out

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff: Mr M D Cuerden
Defendant: Mr G J Pynt

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Pynt & Partners

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

Cartledge vE Jopling & Sons Ltd [1963] AC 758
Chappel v Hart (1998) 195 CLR 232
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
Rosenberg v Percival (2001) 205 CLR 434
Rothwell v Chemical & Insulating Co Ltd [2007] 3 WLR 876
Tabet v Gett [2010] HCA 12, (2010) 265 ALR 227
Todorovic v Waller (1981) 150 CLR 402
Wardley v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

KEEN DCJ: The plaintiff claims damages following surgery for her urinary incontinence recommended and performed by the defendant on 28 November 2000.
It is alleged that there were risks associated with that surgery and that the defendant's duty of care included a duty to exercise reasonable skill and care in the provision of medical treatment and advice to the plaintiff (substituted statement of claim at par 11).
The substituted statement of claim at par 13 sets out that duty as including:
(a)providing information to the plaintiff pre-operatively that explained the material risks of the surgery including those risks identified at paragraph 11; and
(b)recommending to the plaintiff that she not undergo the surgery immediately but defer providing her consent to undergo the surgery until her family was complete lest one of the risks of the surgery eventuated and compromise her fertility.
The complication alleged to have been suffered by the plaintiff was the formation of an abscess within the retropubic space of the plaintiff's pelvis which became apparent in April 2007 leading to infertility.
In the substituted statement of claim at par 18 it is alleged that 'as a result of the complications the plaintiff has multiple pelvic adhesions which are disrupting the normal anatomy of the pelvis and causing the plaintiff infertility'.
The plaintiff issued her writ for damages on 26 February 2008.
On 11 June 2010 a deputy registrar of the court struck out the substituted statement of claim and dismissed the plaintiff's action on an application of the defendant dated 1 April 2010 made pursuant to O 20 r 19(1) Rules of the Supreme Court 1971. That application was on the basis that the plaintiff's claim was barred under s 38 of the Limitation Act 1935 (the 1935 Act), the plaintiff's cause of action having arisen at the date of the surgery.
The plaintiff now appeals that decision.

The limitation law

The 1935 Act which applied at the date of the surgery, relevantly provides by s 38(1)(c)(vi) that actions founded on tort shall and may be commenced within six years after the cause of action.
The Limitation Act2005 (the 2005 Act) came into effect on 15 November 2005 and applies to a cause of action that accrued after that date (s 4). Section 14 of that Act relevantly provides that an action for damages relating to a personal injury to a person cannot be commenced if three years have elapsed since the cause of the action accrued. There was no dispute that the subject of this action was a personal injury is defined in s 3.

The issues

The defendant, in his submissions rightly noted that 'the issue on this appeal is relatively straightforward, even if its resolution is not'.
The defendant's case is that any cause of action the plaintiff may have arose at the time of the surgery, would be covered by the 1935 Act, and would be statute barred.
The plaintiff's position is that the cause of action arose when she discovered the abscess in April 2007, the 2005 Act applies, and she was not out of time.
Alternatively the plaintiff argues that the circumstances relating to the facts and relevant law are not so settled or certain that the action should be dismissed in a summary manner.
This being an interlocutory application to dismiss the plaintiff's claim it is not necessary for me to descend into and determine the factual matrix which is a matter for trial. However, for the purposes of this application I must assume a number of matters alleged by the plaintiff:
1.she suffered urinary incontinence;
2.she underwent surgery for that condition on 28 November 2000;
3.that there were material risks associated with that surgery including pelvic abscess formation;
4.that the defendant had a duty to advise her prior to the surgery of such a material risk;
5.that the duty included that the defendant should have recommended that she not undergo the surgery immediately but defer providing her consent to undergo the surgery until her family was complete lest one of the risks of the surgery eventuate and compromise her fertility (substituted statement of claim at par 13(b));
6.that the plaintiff underwent surgery when she did on the recommendation of the defendant;
7.that the plaintiff suffered complication being the formation of an abscess, diagnosed in April 2007, causing infertility;
8.that had the plaintiff not undergone the surgery immediately but deferred providing her consent to undergo the surgery until her family was complete then whatever complications may have arisen from her incontinence they would not have affected her ability to conceive and have a family (substituted statement of claim at par 19); and
9.that the defendant breached his duty of care by making the recommendation that the plaintiff undergo the surgery when she did.

The cause of action

Damage is an essential ingredient in an action for negligence; Tabet v Gett [2010] HCA 12, (2010) 265 ALR 227 [109], [110]. Liability based on breach of duty of care without proven loss of harm will not suffice.
Once a plaintiff suffers some compensable physical injury then, generally speaking, the plaintiff must sue for all the loss that arises from that cause of action; Todorovic v Waller (1981) 150 CLR 402 412; Cartledge v E Jopling & Sons Ltd [1963] AC 758; see also Rothwell v Chemical & Insulating Co Ltd [2007] 3 WLR 876 (Pleural Plaques Case).
In the context of medical negligence there may be little room for doubt that a plaintiff could suffer damage at the point of surgery in a number of scenarios. For example, the surgery itself may have been performed negligently or the wrong surgery performed. There may be surgery performed that results in a less than acceptable outcome where no warning or an inadequate warning of such a risk has been given and in circumstances where, had the plaintiff been aware of the risk of such outcome, he or she would not have consented to undergo such surgery.
The present case is none of those scenarios. The duty breached is that set out at par 13(b) of the substituted statement of claim. There is no suggestion in the present action that the abscess that the plaintiff suffered arose as a result of the surgery being carried out in a negligent manner.
So in the present case it is a matter of timing; that is to say - not whether to have the surgery - but when. The risk inherent in the surgery as it relates to the present case is put in two parts: the risk of, amongst other things, an abscess formation, and, that leading to infertility. Accordingly, in the way in which this case is pleaded, if one were to assume that the risk of abscess formation was disclosed to the plaintiff and that risk eventuated, that alone would not lead to a cause of action. It is only when the risk identified is coupled with the consequence arising from it of compromising the plaintiff's fertility that it can be said that the tort of negligence from the recommendation not to defer the surgery at the time is complete.
In Tabet's case it was noted by Hayne and Bell JJ [66] that for the purposes of the law of negligence, 'damage' refers to some 'difference' to the plaintiff and that the difference must be 'detrimental'.
The defendant argues that the surgery is that difference. The plaintiff argues otherwise. The plaintiff argues that there was no damage until the risk associated with the surgery, and, the consequences from that risk materialised. The plaintiff relies on the dicta of Gummow J in Rosenberg v Percival (2001) 205 CLR 434 [86] in the context of the obligation upon medical practitioners to warn their patients of the consequences of the treatment contemplated that causation requires satisfaction of two criteria. For the purpose of the present matter it is the first criteria that is relevant, that is to say there a breach of the duty to warn of a material risk, the risk having eventuated and caused, in a physical sense, injury to the plaintiff. When seeking to identify that risk his Honour [61] spoke of the risk being 'material'. His Honour ([95]), when considering Chappel v Hart (1998) 195 CLR 232, also noted that in that case the majority expressed the view that the damage sustained by the plaintiff was not the exposure to the risk of harm but the actual harm that eventuated.
The plaintiff says that to adopt the simplistic approach of the defendant is to lose sight of two matters.
The first is that when their Honours in Tabet discuss 'difference' to the plaintiff their Honours noted that the difference must be detrimental.
In the context of surgery there will almost inevitably be some detriment at some point in the process, for example, the initial incision. However, in my view, it is arguable that that is not enough. It is reasonable to look at the totality of the procedure to see if there has been a difference that is a detriment. It would be unrealistic to do otherwise. Where the surgery has been successful and has cured the initiating complaint it would be hard to say that it was other than beneficial. In other circumstances the position may just be neutral.
In the Pleural PlaquesCase Lord Hoffmann was dealing with a case involving development of pleural plaques arising out of exposure to asbestos. In that case his Lordship noted [2] that symptomless plaques were not compensable damage nor was the risk of future illness or the possibility of risks materialising. He noted that if a plaintiff had actually suffered a compensable injury that risk may be taken into account in computing the loss suffered but not otherwise.
Further, Lord Hoffmann when noting that a claim in tort based on negligence was incomplete without proof of damage said [7]:
Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one's health or capability.
At [8] he posed the question of how much worse off must a person be. He noted that the injury must not be trivial and specifically noted that because people do not often go to the trouble of bringing actions to recover damages for trivial injuries, the question of how trivial is trivial has seldom arisen directly but was relevant in the context of Limitation Acts.
His Honour then went on to note that that was the vital question in Cartledge v Jopling a case dealing with the onset of pneumoconiosis and the effect of the Limitation Act 1935 (UK) in which it was necessary to determine when loss and damage which was not insignificant was suffered by the plaintiffs irrespective of their knowledge of such damage. Apart from dealing with the principles that arise from that and the 'once and for all rule' as it applies to awards of damages, Cartledge v Jopling contains further dicta that is relevant to the present case. At (771 – 772) Lord Reid dealt with the 'once and for all rule' but then at (773) raised a distinction between the circumstances in that case and other circumstances not unlike the present when he noted:
Such cases as Davie v New Merton Board Mills Ltd show that under the law as it now stands several years my not infrequently elapse between the last negligent or wrongful act of the defendant and the date when the cause of action first accrues. In Davie’s case the period was seven years. That is because in these cases the danger created by the defendant only causes damage to the plaintiff at a much later date. (Emphasis added.)
Applying that reasoning to a case where surgery causes no harm or symptoms, the fact that the plaintiff may have been exposed to a risk which may or may not eventuate does not give rise, in my view, to actionable harm and therefore does not give rise to a cause of action until the risk eventuates.
Accordingly, on the basis of those authorities, the risk in the future of some damage without that initial actionable injury is not of itself actionable.
The second problem that arises on the defendant's argument, as postulated by the plaintiff, is one of practicality and principle. If, whenever surgery had been successful or at least neutral but there was a breach of duty on the part of the surgeon in some failure to warn, the plaintiff was obliged to bring his or her action within the limitation period after the surgery on the premise that a risk might be eventuate in the future, the floodgates of litigation may be opened. Whether or not that is so may be debatable, but nevertheless plaintiffs would be well advised in those circumstances to institute proceedings 'just in case'.
Against this, the defendant argues that, if the plaintiff can wait until one of the risks associated with the surgery eventuates before a cause of action arises then arguably that plaintiff could rely upon a new cause of action arising whenever any one of those risks arose. In my view that would not be the case. As soon as the damage is suffered by a risk eventuating the plaintiff then has his or her cause of action which on the 'once and for all rule' and upon the dicta in the Pleural Plaques case, would then be the platform for compensation to which would be attached claims for damages for all the future risks arising.
In the circumstances of the present case, a plaintiff would face what may be an impossible task in the assessment of loss and damage. That assessment would involve a multi-staged approach involving amongst other things: first, the probability of an abscess forming involving a consideration of when that would be likely in the context of when the plaintiff may have children, and, secondly, whether such abscess formation would be likely to cause infertility or other problems likely to interfere with her ability to have children. All of those matters would have to be considered in the context of a plaintiff who might not even know of the risk that would need to be addressed. That is the very reason for the duty to advise because the subject is or may be one beyond the knowledge of the average patient.
It can therefore be seen that a plaintiff such as in the present case, ignorant as to the desirability to defer surgery, may well have no knowledge or the means of knowledge of such a material risk (Rosenberg [61]) until the event, the abscess leading to infertility, occurs. In my view there is arguably a distinction between that situation and that which arose in Cartledge v Jopling where the plaintiffs did not know of the underlying disease. The distinction is that in the present case the very basis for the claim and liability is that the plaintiff should have been informed and by the defendant himself; Rosenberg [86].
Because of the view that I have taken it is not necessary for me to consider or decide whether cases such as Wardley v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 or Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388, being commercial cases, which the plaintiff says are authority for the proposition that a risk of loss is not a category of loss, can apply to a case involving personal injury.
Whilst the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 discussed how one might deal with an event which might or might not occur and the approach to be taken, again, in view of the way I have approached this matter it is by no means certain that the court's approach in that case is appropriate to a case such as this.
In my view there needs to be a trial where all relevant evidence may be led and tested to establish whether there was an actionable injury at that time of surgery as propounded by the defendant for which damages could be assessed.
Both parties agreed that limitation questions should only be determined in interlocutory proceedings in the clearest of cases and that must be so: Wardley Australia Ltd v State of Western Australia. Great care must be exercised to ensure that a plaintiff is not improperly deprived of the opportunity for a trial but where argument demonstrates that the case is clearly untenable a case may be dismissed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130.
I was advised by counsel for both parties that neither could find any authority directly on point in the present matter; that point being where there has been a breach of duty to recommend a deferment of surgery until after a specified period or set of circumstances and in circumstances where the plaintiff would undergo such surgery and accept the risk at some later stage. Apart from the cases to which I have referred that would appear to be the position.
I am not satisfied at this level of inquiry that it is so certain that the plaintiff suffered a compensable injury at the time of the surgery so that her cause of action then arose and is now statute barred and the action should be dismissed.
Further I accept the plaintiff's argument that the law is not so settled or certain to dismiss the action in a summary manner on the basis that it is barred under the 1935 Act.

Conclusion

In my view this appeal should be allowed. I would set aside the Deputy registrar's order of 11 June 2010 and substitute an order that the defendant's chamber summons of 1 April 2010 be dismissed.