Garrett v Beran
[2000] NSWSC 864
•30 August 2000
CITATION: Garrett v Beran [2000] NSWSC 864 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20052/98 HEARING DATE(S): 21 August 2000 JUDGMENT DATE: 30 August 2000 PARTIES :
Leonie Coral Garrett
(Plaintiff)Roy Beran
Sandra Toth
(Second Defendant)
(Second Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr K Pryde
Mr M T McCulloch
(Plaintiff)
(Second Defendant)SOLICITORS: Mr M Whelan of
Ms Meghan Haire of
Geoffrey Edwards & Co
(Plaintiff)
Ebsworth & Ebsworth
(Second Defendant)CATCHWORDS: extension of limitation period - ss 60C & E - add defendant - file amended statement of claim LEGISLATION CITED: Limitation Act 1969 (NSW) - ss 60C & E CASES CITED: Sydney City Council v Zegarac (1997-98) 43 NSWLR 195
Brisbane South Regional Health Authority v Taylor (1969) 186 CLR 541; 139 ALRDECISION: See para 22
16
add defendant; file amended statement
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
WEDNESDAY, 30 AUGUST 2000
20052/98 - LEONIE CORAL GARRETT v ROY BERAN
JUDGMENT (Extension of limitation period - ss 60C & E
of claim)
1 MASTER: By notice of motion filed 15 March 2000 the plaintiff seeks an order granting time within which to proceed against Sandra Toth trading as “Wanda Beach Pharmacy” as second defendant pursuant to s 60C of the Limitation Act 1969 (NSW) (as amended) (the Act). The plaintiff relied on the affidavits of Mark Ambrose Whelan sworn 13 March 2000, the plaintiff’s mother Patricia Lorraine Garrett sworn 15 August 2000, and the plaintiff sworn 15 August 2000. Mrs Garrett and Mr Whelan gave evidence and were cross examined. The defendant did not file any affidavit evidence but opposed the orders sought.2 In February 1998, a statement of claim was filed against the first defendant, a medical practitioner, alleging negligence and breach of contract arising from his prescribing for the plaintiff a drug known as Lamotrigine, which is an anti-epileptic drug.
3 The second defendant is a registered pharmacist. On about 14 March 1995 she filled a prescription written by the first defendant for the plaintiff of Lamotrigine. The second defendant allegedly supplied the plaintiff with a box of 25 mg Lamotrigine (also known under the brand name Lamictal) tablets and a box of 100 mg Lamotrigine concurrently.
4 It is alleged that the second defendant was negligent in that firstly, failing to ensure the plaintiff was aware that the two prescriptions of Lamictal were not to be taken concurrently; secondly, failing to ensure that the plaintiff was aware that the 25 mg prescription of Lamictal should be taken prior to commencing the 100 mg prescription; thirdly, failing to check the prescribed dosage of Lamictal; fourthly, filling the prescriptions as written by the first defendant without making any enquiries of the first defendant, of the plaintiff or her mother about the appropriateness of the medication in all the circumstances; fifthly, failing to check or failing to adequately check on the need for caution in the use of Lamictal as recorded in the MIM’s Annual under the headings “Precautions” and “Adverse Reactions”; sixthly, failing to convey to the plaintiff or to her mother the warnings relating to the use of Lamictal as recorded in the MIM’s Annual under the headings “Precautions” and “Adverse Reactions”; seventhly, failing to recognise Lamotrigine (Lamictal) as a new medication; and eighthly, failing to check on the need for caution to be exercised in relation to the prescribing of Lamictal. As a result the plaintiff suffered adverse reaction to Lamotrigine, Stevens Johnson Syndrome, toxic epidermal necrolysis, shock and related sequelae.
5 As previously stated, the plaintiff’s mother, Patricia Garrett, and the plaintiff’s solicitor, Mark Whelan, gave evidence and were cross examined. I carefully observed these witnesses being cross examined, and I formed the view that they were giving truthful evidence. For the purposes of this application I find the following facts.
6 The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the proposed second and third defendants. Sections 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides:
(1) The plaintiff was born on 15 January 1966 and is now 34 years old. She suffered from Meningitis when she was about 6 weeks old. She was diagnosed as having epilepsy when aged about 3 years. Since that time she has been on some form of anti-epileptic medication continuously, although the actual medication has varied from time to time.
(2) The plaintiff generally performed poorly during her school years and was regarded as slow in her learning abilities. She left school at about 14 years of age prior to completing the school certificate. She has lived with her parents since that time. She has not been in employment, except for two weeks.
(3) In January 1995 the plaintiff consulted Dr Hackworthy, her local general practitioner. She was referred to Dr Beran, a neurologist, because her epilepsy was not fully controlled by the dosage of Epilim.
(4) The plaintiff consulted Dr Beran on 1 and 8 March 1995. On 8 March 1995 Dr Beran prescribed Lamictal. Lamictal was to be taken in conjunction with Epilim. Lamictal was to be taken in an initial dosage of 25 mg every second day for two weeks and then 25 mg daily for two weeks and 25 mg twice daily for two weeks, and finally a maximum dosage of 100 mg per day.
(5) On 14 March 1995 the plaintiff attended the proposed second defendant’s pharmacy. Upon presentation of two prescriptions, packets of 25 mg and 100 mg tablets of Lamictal were concurrently dispensed by the second defendant and given to the plaintiff. The plaintiff was not given any oral explanation by the pharmacist as to the side effects of the new drug and the manner in which it was to be taken.
(6) On 14 March 1995 in the evening the plaintiff and her mother (who also suffers from epilepsy) took their medication together over a cup of coffee. The plaintiff’s mother read the label on the boxes of Lamictal, and followed the directions on the boxes. The plaintiff’s mother took out two tablets of Epilim, and one tablet from each of the 100 mg packet of Lamictal and the 25 mg packet of Lamictal (total four tablets). The plaintiff took these tablets each evening from 14 March 1995 to 3 April 1995.
(7) Between 15 March 1995 and 3 April 1995 the plaintiff developed headaches, dizziness, rash, swelling and blistering. The plaintiff discontinued taking Lamictal on 3 April 1995. She was admitted to hospital on that day.
(8) Between 4 April 1995 until 16 June 1995 the plaintiff was hospitalised for two months. She was diagnosed as having Stevens Johnson Syndrome (SJS), also known as Toxic Epidermal Necrolysis (TEN), with a skin loss of 50%. She had severe damage to her eyes and was treated with immuno-suppressive therapy. She was very seriously ill and her parents were informed that she might die. She was discharged in a profoundly disabled state. She has an ongoing need for treatment, hospitalisation and care. The plaintiff has been left with no vision in her right eye, and has difficulty opening her right eye and cannot discern people or read in any way. The vision in her left eye is better, but it only permits her to read medium size lettering from a distance of about 10 centimetres, and only with difficulty. She is currently learning Braille to compensate for the extensive loss of vision. Her eyes require constant lubrication. Because of the impaired vision she loses her balance. She has difficulty with her hearing.
(9) On 16 July 1996 the plaintiff’s mother instructed the plaintiff’s current solicitors. At that time the solicitor obtained an opinion from senior counsel. Senior counsel informed the solicitor that the plaintiff had no viable cause of action.
(10) On 22 February 1998 (just prior to the expiration of the limitation period) a statement of claim was filed against Dr Beran. At that time the plaintiff’s solicitor and mother assumed that the proper dosage of Lamictal was taken. Dr Beran was sued as a defendant for not warning of the reported side effects. Both the solicitor and the plaintiff's mother gave evidence that in February 1998 it was considered whether or not to join the pharmacist, or additionally the hospital or Dr Hackworthy, on the basis that the pharmacist should have given instructions about the taking of Lamictal. The joining of the pharmacist rated a brief mention.
(11) In 1996 in the Australian Journal of Dermatology an article was written on the plaintiff. It was entitled “Lamotrigine-induced toxic epidermal necrolysis treated with intravenous cyclosporin: A discussion of pathogenesis and immunosuppressive management”, by John R Sullivan and Alan Watson. This article is written on the basis that the proper dosage was taken (see last paragraph on page 1), namely that Lamotrigine was started at 25 mg on alternate nights for two weeks, followed by 25 mg at night for nine further days.
(12) On 14 March 1998 the limitation period expired.
(13) On 9 July 1998 the plaintiff’s solicitors wrote to the proposed second defendant requesting information concerning the prescription. No response was received.
(14) In August 1998 the plaintiff’s solicitor obtained the Mater hospital notes pursuant to a Freedom of Information application. In October 1998 the plaintiff's legal representatives noticed a discrepancy between the reference to dosage level in the Mater hospital notes and the dosage initially recommended by Dr Beran.
(15) On 14 May 1999 a conference was held between the plaintiff’s solicitor, senior and junior counsel. The plaintiff’s mother was available by telephone. The plaintiff’s mother told her legal representatives that she may have the box that contained the medication in her possession. On that day a printout of prescriptions was obtained from Wanda Beach Pharmacy indicating that Lamictal 25mg and 100 mg prescription were both filled out on 14 March 1995. Ms Toth told the plaintiff’s mother that her solicitors had advised her that she need not respond to the plaintiff’s solicitor’s letter of 19 July 1998 and she had acted on that advice. Within a few days of this conference the plaintiff’s mother located an empty prescription box for 100 mg Lamictal and forwarded the same to the plaintiff’s solicitor.
(16) On 16 December 1999 the plaintiff’s solicitors notified Ms Toth of her intention to join her as second defendant.
(17) On 27 July 1999 an amended statement of claim was filed.
(18) On 25 November 1999 Dr Beran filed a defence to the amended statement of claim. This allowed the plaintiff’s solicitors to subpoena the pharmacist’s records.
(19) In January 2000 expert’s reports were obtained from Dr Herlihy and Dr Fisher, who advised that both defendants were in breach of duty of care to the plaintiff.
(20) In February 2000 the plaintiff’s solicitor discovered carbon copies of the original 25 mg and 100 mg prescriptions dated 8 March 1995 and repeats dated 14 March 1995 in the solicitor’s file. No other solicitor handling this file has any recollection of when those prescriptions were obtained.
(21) On 13 March 2000 a report of Helen Dauncey, pharmacologist, (Ex A) was obtained.
(22) On 15 March 2000 this notice of motion was filed.
The Law
7 Section 60E provides:
“Ordinary action (including surviving action)
60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."
“Matters to be considered by the court
60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:
(a) the length of and reasons for the delay;
(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;
(c) the time at which the injury became known to the plaintiff;
(d) the time at which the nature and extent of the injury became known to the plaintiff;
(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission;
(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;
(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;
(h) the extent of the plaintiff’s injury or loss.”
8 In relation to ss 60C and 60E of the Act, in Sydney City Council v Zegarac (1997-98) 43 NSWLR 195, Mason P referred to propositions which were uncontroversial. They are:
(1) Section 60C confers a judicial discretion.(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is “just and reasonable” to make the order for extension.
(3) In exercising the discretion, the court is required “to have regard to all the circumstances of the case” (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) “to the extent that they are relevant to the circumstances of the case”.
(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General’s second reading speech. These are set out in the order judgments, and are discussed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR.
(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. Mason P then says that beyond this there are more debatable areas of application of Taylor .
9 Powell J in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA’s further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant.
10 The proposed second defendant submitted that an extension of the limitation period should not be granted because firstly the solicitor had the means of knowledge in relation to dosage if he looked up the medical textbook MIM’s, and secondly, consideration was given to joining the second defendant in February 1998 and it was not done, and thirdly, the plaintiff already has a case on foot against the first defendant. Where is already one defence in the proceedings is not a matter that should be given any weight.
11 I turn to consider the length and the reasons for delay. The delay from the expiration of the limitation period to the filing of the motion is two years. It is over five years since the cause of action arose.
12 In July 1996 the plaintiff’s mother instructed the solicitor to act for her daughter in relation to the injuries the plaintiff suffered as a result of taking Lamictal. In early 1997 Queens Counsel informally advised that an action against the neurologist was not viable. Further investigations conducted by the plaintiff’s legal representatives focused on the manner in which the neurologist dealt with progressive side effects reported to him by the plaintiff’s mother by telephone. As at the expiry of the three year limitation period in March 1998, the plaintiff’s legal representatives advised the plaintiff’s mother that the only action viable was against the doctor. At that time the plaintiff, her mother and the legal representatives believed that the plaintiff had taken the correct dosage of Lamictal. A statement of claim was filed just inside the period to preserve the plaintiff’s rights.
13 The critical Mater Hospital notes were obtained in August 1998. In October 1998 the legal representatives for the plaintiff became aware that the plaintiff has in fact taken a far higher level of the drug than previously thought. The dosage was required to be built up slowly because of potential interaction with her existing anti-epileptic drug (Epilim) which slowed the metabolic rate of Lamictal. The plaintiff’s solicitor became aware that the neurologist had issued two prescriptions concurrently to cater for the increasing dosage. The pharmacist filled out both prescriptions at once. The plaintiff’s mother gave the plaintiff her medication as directed from the pharmacist’s instructions on the packets. The plaintiff then erroneously took Lamictal as prescribed in both, together with a cup of coffee, each evening for 19 days. She had received no oral advice from either the neurologist or the pharmacist as to the correct dosage regime. It was ascertained that the dosage she took was approximately 8 to 10 times that recommended.
14 In May 1999 the plaintiff’s legal representatives specifically asked the plaintiff’s mother about the packets that contained the tablets. Within a few days the plaintiff’s mother forwarded a box to the plaintiff’s solicitors.
15 In relation to s 60E(i)(b), the proposed defendant did not put on any evidence as to actual prejudice nor did she allege that evidence which would have been available in the limitation period is no longer available. Further, in November 1999 Dr Fisher, a General Practitioner who subsequently provided a medico legal report for the plaintiff, informed the plaintiff’s solicitor that the pharmacist could be held liable.
16 In relation to s 60E(c) and (d), the plaintiff knew the injury was related to the side effects of Lamictal, and she also knew the nature and extent of her injuries while hospitalised, or within a short while after hospitalisation. The hospitalisation was 19 days after she commenced taking the drug. In relation to s 60E(e), it was in May 1999 that the plaintiff knew of the connection between the injury and the second defendant’s acts. In relation to s 60E(f), there was conduct by the defendant which induced the plaintiff to delay bringing the action. The pharmacist did not respond to the plaintiff’s solicitor’s letter of 9 July 1998 seeking details of the prescription. Although the action was already out of time, such response may well have reduced the delay in bringing the application to extend time. Ms Toth apparently took legal advice to the effect that she need not respond to the letter. In relation to s 60E(g)(, the plaintiff obtained and served medical reports of Drs Fisher and Herlihy. On 13 March 2000 a report of a pharmacologist was served on the second defendant. The plaintiff acted promptly to provide particulars and serve reports.
17 In relation to s 60E(i)(h), the plaintiff is a relatively young woman, who if successful with her action will receive substantial damages. Her eyesight is so poor she is learning to read Braille. She was seriously ill when 50% of her skin peeled off her body.
18 It was not submitted that the plaintiff does not have a real case to advance. In any event I am satisfied that the plaintiff has a real case to advance.
19 I turn to consider delay generally. I accept that with the passing of time, there will be presumptive prejudice. It is now nearly 5 years since the cause of action arose. There is relevant documentary evidence available to all parties, namely the prescriptions and the box which contained Lamictal with the instructions provided by the second defendant affixed. The plaintiff, her mother, Dr Beran and Ms Toth are available to give evidence. There was no evidence adduced by the second defendant to demonstrate actual prejudice.
20 It is my view that the defendants have not suffered significant prejudice nor are their chances of a fair trial unlikely. I have taken the matters referred to in s 60E(a)-(h) into account. The plaintiff has discharged her onus and I am satisfied that it is just and reasonable to extend the limitation period under ss 60C and E against the proposed second defendant.
21 Costs are discretionary. The second defendant has sought her costs on the basis that the plaintiff has sought an indulgence of the court. The plaintiff offered to pay the second defendant’s costs provided they consented to the orders sought. It is my view that the appropriate order for costs should be costs in the cause.
22 The orders I make are:
(1) Leave is granted for an extension of time within which to commence proceedings in this court for damages in respect of a cause of action which arose on 14 March 1995 against the proposed second defendant up to and including 13 September 2000.
(2) Leave is granted to the plaintiff to join Sandra Toth trading as “Wanda Beach Pharmacy” as second defendant.
(3) The plaintiff is to file and serve the amended statement of claim within 14 days.
(4) Costs of the motion to be costs in the cause.**********
0
1
1