Fraser v Hunter Area Health Service

[2000] NSWSC 738

CITATION:	Fraser v Hunter Area Health Service [2000] NSWSC 738
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 21212 of 1995
HEARING DATE(S):	7 July 2000
JUDGMENT DATE:	28 July 2000
PARTIES :	Stanley Robert Fraser (Plaintiff) v Hunter Area Health Service (Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr M Herschderfer (Plaintiff) Mr M J Ward (Defendant)
SOLICITORS:	Turnbull Hill Lawyers (Plaintiff) McLachlan Chilton (Defendant)
CATCHWORDS:	Extension of limitation period - no question of principle.
LEGISLATION CITED:	Limitation Act 1969, s 58, s 60G, s 60I.
CASES CITED:	N/A.
DECISION:	See paragraph 26.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 28 JULY 2000

21212 of 1995 STANLEY ROBERT FRASER v HUNTER AREA HEALTH SERVICE

JUDGMENT


1   The plaintiff was born on 18 March 1933 (he is now 67 years of age). In 1976, he was making complaints of headache, neck pain and pain across the shoulders. He saw his general practitioner. He was referred to Drs. Bookallil and Ostinga. Dr Bookallil recommended a myelogram.

2   The plaintiff was admitted to Royal Newcastle Hospital. On 22 October 1976, he underwent a myelogram.

3   In an affidavit sworn on 22 March 2000, the plaintiff deposed to the following:-
“10. On the 22nd October, 1976 I was taken to radiology where I spoke to a radiologist who said to me in part, words to the effect:-
‘An oil based dye will be used’.
11. The process of the myelogram was painful and then I was strapped to a table which had two large pegs near my shoulder and the table was tilted.
12. Shortly after the table was tilted there was a difficulty with the table in that it would not return to the horizontal position and I was assisted from the table by people unstrapping me and I was slid off.
13. After that no attempt was made to remove the contrast dye from my spine.
14. Before having the myelogram I was not told by anybody of any effects that I might suffer as a result of having the myelogram except I was told by the radiologist, ‘You might suffer a headache after this’, or words to that effect.
…………..
16. During the myelogram the doctor said to me words to the effect, ‘You have got the oil based dye in, each time you have a spinal myelogram from now on tell the x-ray people you have an oil based dye in your spine as it shows up. It will be there till you die’. After the myelogram the pain which I suffered was different to what it had been before the myelogram. I noted pain in my lumbar spine, legs, head, neck and shoulders which I had not suffered before the myelogram.
17. I initially assumed that the abovementioned pain in my spine, legs, head neck and shoulders would gradually disappear.”

4   In oral evidence, he has said that more or less straight away following the myelogram he had additional problems of a different nature. There was a problem of pain in the right leg. This problem has not persisted. This may have been due to a nerve being hit by the needle in the process of undergoing the myelogram.

5   His problems persisted (indeed continued to get worse). By 22 July 1977, they had become severe and he retired on an invalid pension.

6   He made a compensation claim. It appears that this was founded on various incidents which had occurred at work (the court was told that these preceded the myelogram). The claim was settled in early 1980.

7   On 2 July 1990, he was involved in a motor vehicle accident. The accident inter alia stirred up his problems His present solicitors acted in that matter. He was referred once more to Dr Bookallil. Dr Bookallil referred him to Dr Hart (a radiologist). Dr Hart performed a further myelogram using a water based medium. This took place on 12 June 1991.

8   Dr Hart prepared a report dated 12 June 1991. It contained inter alia the following:-
“There is evidence of severe arachnoiditis in the lower lumbar spine”.

9   The plaintiff contends that this information was not conveyed to him by the doctors. His evidence is that he was given some x-rays and other documents by Dr Bookallil (the documentation included a copy of the report from Dr Hart). The plaintiff says that he looked at the documents about two or three months later and then came across the report from Dr Hart.

10   The plaintiff says that in November 1994, he saw an advertisement in a newspaper. A copy of the advertisement is Annexure M to an affidavit sworn by Mr Hanrahan (the plaintiff’s present solicitor). It was an advertisement that had been placed by his former solicitors (Milne Berry and Berger). After seeing this advertisement, he saw his general practitioner who advised him that there could be a relationship between his problems and arachnoiditis. He was referred to a specialist (Dr Katekar), who provided a report dated 6 July 1995. It confirmed the diagnosis of arachnoiditis. The plaintiff gave instructions to Milne Berry and Berger.

11 These proceedings were commenced by Statement of Claim filed on 24 November 1995. A Notice of Motion was filed on 24 November 1995. It sought an extension of the relevant limitation period under either s 58 or s 60G of the Limitation Act 1969 (the Act).

12   The hearing did not take place until 7 July 2000. On behalf of the plaintiff, a number of affidavits have been read (including the affidavit sworn by the plaintiff). The plaintiff has been cross-examined at some length. He has tendered Exhibit A (it comprises two reports from Dr Bookallil dated respectively 17 June 1991 and 19 August 1991 and a report from Dr Isaacs dated 26 February 1993). The defendant has not adduced any evidence.

13   There has been some attack on the credibility of the plaintiff. It is said that evidence he gave was unreliable. This concerned the matter of his awareness of what had been said in the report from Dr Hart. He did correct what had been deposed to in his affidavit (from March 1998 to late 1994 or early 1995). He gave other oral evidence to the effect that it was in about 1993-1994. Whilst his evidence on this question may have in some respects been lacking in precision, I do not regard it as being unreliable. In my view, the evidence establishes that he acquired the relevant knowledge in about 1994.

14 It was accepted by the plaintiff that if he did not succeed under s 60G he would not succeed under s 58. Accordingly, in submissions the parties concentrated on whether or not the plaintiff could succeed under s 60G.

15 Section 60I prohibits the making of an order under s 60G unless the court is satisfied of the matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These are threshold requirements to the making of an order. When the threshold requirements have been satisfied, there is a discretionary power to grant relief if the court is satisfied that it is just and reasonable to do so.

16   The plaintiff’s case is that he has a relevant personal injury (he suffers from the condition known as arachnoiditis). He was unaware that he was suffering from that condition until about 1994. It is said that the defendant was negligent in two respects. Firstly, it is said that there was a negligent omission (a failure to warn). Secondly, it is said that there was a negligent act (leaving the dye in). Further, it was said that he was unaware of the connection between the personal injury and the act and omission until 1995.

17   In so far as the threshold requirements are concerned, the real issues litigated turn on the plaintiff’s state of knowledge as to his suffering from arachnoiditis and of the connection between that condition and the defendant’s negligent act and omission.

18   I accept the evidence of the plaintiff on these matters. I find that he did not know that he was suffering from arachnoiditis until about 1994. I find that he was unaware of the connection between that condition and the defendant’s negligence until 1995.

19   It may seem surprising that knowledge of suffering from arachnoiditis did not earlier come to him. His evidence receives support from the contents of the three reports contained in Exhibit A. The failure on the part of Drs. Bookallil and Isaacs to raise with the plaintiff the matter or arachnoiditis as disclosed in the report of Dr Hart may be described as truly amazing. However, that they failed to do so is confirmed by what was said in their reports. I find that the plaintiff ought not to have become aware of any of the threshold requirements referred to in (1) (a) at an earlier time.

20   The defendant agitates the discretionary considerations of delay and prejudice. It points to a 19 year delay. There is certainly a long delay. However, a delay in that order is not unusual in the myodil cases. It points to a general presumption of prejudice flowing from that delay. The plaintiff does not dispute that there is presumptive prejudice but joins issue on the weight to be given to that matter.

21   To the extent that the recollection of witnesses may be involved, the potential is that memory may have been either diminished or lost. The plaintiff did have problems prior to the first myelogram and there was the subsequent motor vehicle accident. Largely, the injuries from the motor vehicle accident are different from those suffered by reason of arachnoiditis (his present symptoms are identified in paragraph 27 of his affidavit). There is potential for some complication, but I am not of the view that any problems would be of significance.

22   The defendant has not led any evidence of prejudice. It is not said that there has been a loss of relevant records (there is material which indicates that the myelography films for 1976 remain available). It is not said that relevant witnesses are now unavailable. Whilst it has not had the plaintiff medically examined (even though it has been on notice of the claim since about 1995), there are medical reports from the plaintiff and perhaps other sources which may be available to it.

23   In the circumstances of this case, it seems to me that a fair trial of the relevant issues is still possible.

24   The plaintiff bears the onus of satisfying the court that he has an entitlement to relief. In the relevant circumstances of this case, I am satisfied that the onus has been discharged.

25   Accordingly, I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case.

26   I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 24 November 1995. The costs of the Notice of Motion are to be costs in the cause. The exhibit may be returned.
**********

Last Modified: 09/26/2000