Fuller, Charles William v Medical Benefits Fund of Australia Ltd

[1999] TASSC 82

[1999] TASSC 82

CITATION:                 Fuller v Medical Benefits Fund of Australia Ltd [1999] TASSC 82

PARTIES:  FULLER, Charles William
  v
  MEDICAL BENEFITS FUND OF AUSTRALIA LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1684/1995
DELIVERED ON:  10 August 1999
DELIVERED AT:  Hobart
HEARING DATES:  30 June 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Torts - The law of torts generally - Joint or several tortfeasors - Contribution - Limitations as to time - Whether leave should be granted to amend statement of claim - Whether new cause of action - Whether prejudice.

Tortfeasors and Contributory Negligence Act 1954 (Tas), s3(5), (6).

Rules of the Supreme Court, O18, Div 5.

Crockett v Roberts & Ors 29/1992, followed.

Aust Digest Torts [15]

Torts - The law of torts generally - Joint or several tortfeasors - Contribution - Limitations as to time - Third party notice - Whether claim by defendants against third party barred by lapse of time - Threshold test - Whether delay, prima facie case and prejudice - Whether justice of the case requires joinder.

Aust Digest Torts [15]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart
             Defendant:  G L Sealy
             Third Parties  A R Denehey
Solicitors:
             Plaintiff:  Jennings Elliott
             Defendant:  Piggott Wood & Baker
             Third Parties  Murdoch Clarke

Judgment Number:  [1999] TASSC 82
Number of Paragraphs:  20

Serial No 82/1999
File No 1684/1995

CHARLES WILLIAM FULLER v
MEDICAL BENEFITS FUND OF AUSTRALIA LTD

REASONS FOR JUDGMENT  WRIGHT J

10 August 1999

1. On 1 May 1992, the plaintiff underwent a surgical operation for a strangulated hernia at St John's Hospital, Hobart.  The operation was successful but, almost immediately thereafter, it was found that the plaintiff had sustained significant personal injuries resulting from a compression of the ulna nerve and supervening palsy in each of the upper limbs.  The plaintiff sued the defendant, as operator of the hospital, alleging that his injuries resulted from the hospital's nursing staff failing to correctly support his arms during the course of the operation so as to protect them from continuous pressure.

1. The plaintiff alleges that the damage to his ulna nerves has caused severe and permanent disability.  He has made no claim against his surgeon, Mr Desmond Cooper, or his anaesthetist, Dr Ron Tapson.  He has confined his case to alleging that the defendant is vicariously liable for the negligent conduct of its nurses who were assisting during the operation.

1. On 30 June 1999, I heard two applications.  The first was an application by the plaintiff for leave to amend the statement of claim.  This application was made by the plaintiff on the basis that since proceedings were first instituted, information had come to hand, particularly from Dr Rossi, a consultant neurosurgeon, which indicated that in addition to the cause of the disability of which the plaintiff first complained, namely that his elbows were permitted to lie against the metal side pieces of the operating table, or that they were allowed to lie against the bumpy side of foam placed between his elbows and the ski boards, or that the arms were not properly supported during the course of the operation, it could and should be alleged, as an alternative, that the damage sustained resulted from the plaintiff's arms being folded across his chest at an angle of greater than 45 degrees during the operative procedure, thus causing excessive compression of the ulna nerve in each arm.

1. In opposing the plaintiff's application to amend, the defence has contended that the latter allegation constitutes a new cause of action or a new case which it would be unjust to allow the plaintiff to pursue as any fresh claim by him is now statute barred.  I ruled orally that there was no new cause of action, but I reserved for further consideration, the question whether or not it would be unfair to the defendant to allow the amendment, particularly if the effect of doing so would be to preclude the defendant from the opportunity of joining the surgeon and anaesthetist as third parties.

1. The second application was the defendant's application for that very purpose, that is, to join the anaesthetist and surgeon as third parties in the present action.  The application was made in accordance with the Rules of Court, O18, Div5, but because of the time which has elapsed since the delivery of the defence, the provisions of the Tortfeasors and Contributory Negligence Act 1954, s3(5) and (6) required consideration.  Those provisions are as follows:

"(5)  Notwithstanding any provisions of any enactment requiring notice of damage or injury to be given, or notice of an intended action to be given, or limiting the time within which an action may be brought, proceedings for contribution under this section may, although notice of damage or injury, or notice of an intended action, as the case may be, has not been given, or the time so limited has expired, be commenced at any time within the period of twelve months (or within such extended period as may be allowed pursuant to subsection (6) of this section) after the writ in the original action was served on the person seeking to recover contribution.

(6)   A judge, commissioner of a court of requests, or justice, or any other person constituting or presiding over a court of competent jurisdiction, on the application of a person seeking to recover contribution under this section, may, in his discretion and subject to such conditions (if any) as he may impose, extend the period within which proceedings for recovery of contribution shall be commenced, notwithstanding that the period prescribed in subsection (5) of this section may have expired, if he is satisfied that the person from whom contribution is sought to be recovered will not be prejudiced in his defence by reason of the extension."

1. In Crockett v Roberts & Ors, 29/1992, Cox J (as he then was) held that the question of prejudice mentioned in s3(6) creates a threshold test which any such applicant as the defendant in the present case must overcome before being in a position to ask the Court to exercise its discretion.  Once the threshold problem has been overcome, the need to exercise the discretion remains and this must be exercised in light of other issues, such as delay, reasons for the delay and the existence or otherwise of a prima facie case.

1. Mr Denehey appeared for the two prospective third parties and argued that the defendant should not have leave to institute the third party proceedings.  I ruled orally that the defendant has established a prima facie case against both doctors, thereby rejecting Mr Denehey's argument that Dr Rossi's proof of evidence was insufficient for this purpose.  I pointed out that a defendant is nearly always in a position on an application such as this, of saying, in effect, "well, we do not admit the plaintiff's case, but the plaintiff's case against us is XYZ and if that succeeds we may then be in a position of being entitled to recover contribution against the proposed third party", a somewhat different situation from that which exists in the normal case where a prospective plaintiff seeks to institute proceedings out of time against a prospective defendant.  In short, a defendant who is resisting a plaintiff's claim on the merits may nonetheless show that he has a prima facie case against a prospective third party by showing that the plaintiff is mounting a claim against the defendant which also tends to implicate the third party and is not manifestly unmeritorious.

1. I indicated at the hearing on 30 November that in respect of the defendant's application to commence third party proceedings, there were two live issues remaining for my consideration, namely whether or not the defendant has surmounted the threshold hurdle of establishing that there would be no prejudice to the prospective third parties if proceedings against them were instituted at this time, and, secondly, whether or not there had been unjustifiable delay before making the application.

1. In dealing with the outstanding issues on each application, it is necessary to review some of the history of the case.  Dr Umberto Rossi furnished the plaintiff's solicitors with a proof of evidence on 10 June 1997 in which he expressed the opinion as to the cause of the plaintiff's injuries to which I have already referred.  I must say it is a little difficult for me to understand why it was that the two medical practitioners who were involved in the operation were not joined by the plaintiff as co-defendants with the hospital operators from the outset of the litigation.  However, the plaintiff's solicitors deliberately chose not to pursue that course and, because of the expiration of the relevant limitation period which would apply if they were to be sued now, it is, for all intents and purposes, impossible for the plaintiff to now look to either or both doctors for compensation.

1. The plaintiff's application to amend the statement of claim was filed on 3 July 1998 and it has been conceded by counsel for the defendant that no complaint can be made of any delay which may have occurred subsequent to that date.  Counsel for the defendant, Mr Sealy, argued that the plaintiff's proposed amendment will render it necessary for his client to bring the doctors into the proceedings as third parties because, if the alternative mechanism of the injury propounded by Dr Rossi, viz, the inappropriate positioning of the plaintiff's arms across his chest during the operation, proves to be the actual cause of the plaintiff's disability, liability should be borne by the surgeon and/or the anaesthetist, rather than the nursing staff.

1. Mr McTaggart, counsel for the plaintiff, contended that the proposed amendment did not substantially alter the plaintiff's case and, as I have already indicated, I agree with this submission.  Mr McTaggart contended that if the defendant had shown sufficient concern for minimising its own exposure to a damages claim, it should have joined one or other or both of the medical practitioners as third parties soon after the delivery of the defence in the action.  It should be noted that the writ was issued on 31 October 1995, the statement of claim was delivered on 18 January 1996, and the defence was delivered on 24 January 1996.  The plaintiff sought, and was granted, leave to commence proceedings out of time by a nunc pro tunc order, made by the Master on 2 April 1996.

1. I think that there is considerable substance to Mr McTaggart's argument, but that does not necessarily mean that the application to amend can be finally resolved in the plaintiff's favour.  There can be no doubt that there has been some unexplained delay by the plaintiff since this action was first instituted.  However, it seems to me that the same disentitling consequences should not necessarily be suffered by a plaintiff who is only seeking to amend his claim in an existing action as those which may be suffered by a prospective plaintiff who is seeking the exercise of the Court's discretion in his favour for the purpose of commencing proceedings out of time. 

1. I indicated on 30 June 1999 that my decision on the first application may be effectively determined by my decision in respect of the second application to join the third parties but, I think, on reflection, that this approach was erroneous.  Whilst some similar issues arise with respect to each application, different parties with different interests are involved.  To determine one on the basis of the outcome of the other, invites impermissible circularity of reasoning, I think, and I have therefore concluded that each application must be resolved on the basis of its own intrinsic merit.  Having now had an opportunity to consider the position, I have concluded that it is just and appropriate that the amendment sought by the plaintiff to the statement of claim should be allowed and I therefore formally give leave to the plaintiff to deliver an amended statement of claim incorporating the proposed amendments set forth in the amended application, within 14 days.  The defendant will have 14 days thereafter within which to deliver any consequential amendment to its defence.

1. So far as the second application is concerned, somewhat different considerations apply.  In the first place, there is the threshold question referred to in Crockett v Roberts (supra).  As I have already mentioned, it was suggested by Mr Sealy that the current application to join the third parties had been prompted and necessitated by the proposed amendment to the statement of claim sought by the plaintiff, but I am quite unable to accept this as a full or reasonable explanation of the defendant's dilatoriness in seeking to join the two doctors.  Their involvement as potential parties should have been manifest from the moment the writ was served.  The plaintiff deliberately chose not to sue the doctors in the alternative, or as joint tortfeasors with the hospital.  By making this election, he may fail in his action altogether, but this prospect provides no justification for the defendant failing to consider its position at an early stage and seeking an indemnity from the doctors in the event that the hospital staff may be found to have breached their duty of care to the plaintiff.  Such a prospect should have been obvious to the defendant from the outset, in my opinion.  In my opinion, the defendant's belated application to commence third party proceedings is not wholly attributable to, or explicable by, the plaintiff's application to amend the statement of claim.  I think that application has undoubtedly served as a trigger for the defendant to review the case generally and to conclude that joinder of the doctors is a wise step to take, but before even considering whether this would provide a basis for allowing the commencement of third party proceedings, I need, of course, to be affirmatively satisfied that the doctors will not be prejudiced if such a course is permitted.

1. Mr Cooper, the surgeon, became involved in these proceedings even before the writ was issued.  He was consulted by the plaintiff's solicitors and provided them with a report and an opinion.  He therefore had cause to reflect upon the matters in question and to consider the circumstances of the operation and the causes of the plaintiff's disabilities some years ago.  From his affidavit, it appears that he has now lost some important notes, but there is no reason to suppose that his recollection of relevant events is substantially dimmed at the present time. 

1. Dr Tapson, on the other hand, has had no direct involvement in the matters now in issue since the date of the operation.  He has had no reason to recall what occurred and he says he has no recollection of the operation and has retained no records relevant to it.  He can only now speak of his standard practice in such cases. 

1. I would have thought that in circumstances such as these, it could fairly be argued that there would be significant prejudice to Dr Tapson if he were to be joined as a third party in the proceedings.  It could be claimed, for example, that if proceedings had been taken at an earlier time, he may well have retained some memory of the relevant events and may have had some written record of relevant matters.  Time, of course, is the most notorious thief of recollection, but, oddly enough, Mr Denehey has conceded that Dr Tapson cannot claim prejudice.

1. Mr Denehey argued that Mr Cooper can claim substantial prejudice, but I cannot accept this.  Mr Cooper has been involved in the matter, in one way or another, for a very long time and whilst he is unable to recall some discrete matters about the operation, he is plainly sufficiently familiar with the case to be able to deal adequately with the issues which will arise in this litigation.  I am therefore satisfied that each of the prospective third parties will not be prejudiced in his defence of the claims made against him by reason of extending the time within which contribution proceedings may be commenced.

1. As already mentioned, Mr Denehey argued that there was no prima facie case against either doctor, but I have already dealt with that and need not add to what I said previously.  I have also made comments about delay and have expressed my views about that.

1. The essential question I have to answer, having resolved the threshold question of prejudice in the defendant's favour, is whether or not the justice of the case requires that either or both of the doctors be joined as third parties.  The delay by the defendant in joining the third parties has not really been satisfactorily explained.  Delay is nearly always bound up with the question of prejudice, but a mere absence of prejudice does not mean that delay can be ignored as a discrete disentitling factor.  On the other hand, if delay is the only factor militating against the success of an application, an unsatisfactory explanation thereof does not automatically cause an application for the exercise of discretion in favour of a tardy applicant to fail.  It is all a question of fairness and balance.  It is a question of what the justice of the case demands.  In my opinion, the justice of the present case dictates that the defendant should have leave to commence proceedings for contribution against Mr Cooper and Dr Tapson and I have accordingly concluded that I should extend the period within which the defendant may take such proceedings for a period of 14 days from today's date.  An order will accordingly be made in terms of the defendant's application.  It is plain that although each application has been successful, the Court's indulgence has been necessary as a consequence of error or tardiness by each successful party.  It is, accordingly, appropriate, I think, that the plaintiff pay the defendant's taxed costs of the first application and that the defendant pay the prospective third parties' costs of the second application.  In each case, there will be a certificate for counsel.