Gibson v Commonwealth of Australia
[2000] WASCA 51
•8 MARCH 2000
GIBSON -v- COMMONWEALTH OF AUSTRALIA & ANOR [2000] WASCA 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 51 | |
| Case No: | FUL:181/1999 | 25 FEBRUARY 2000 | |
| Coram: | WHITE J | 8/03/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Directions granting leave to file amended notice of appeal | ||
| PDF Version |
| Parties: | PAUL ANTONIO GIBSON COMMONWEALTH OF AUSTRALIA ADRIAN VAN DER RIJT |
Catchwords: | Appeal Notice not complying with the Rules of the Supreme Court Direction pursuant to O 63 r 4 |
Legislation: | Rules of the Supreme Court O 63 r 4 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 44, s 45 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
COMMONWEALTH OF AUSTRALIA
First Respondent
ADRIAN VAN DER RIJT
Second Respondent
Catchwords:
Appeal - Notice not complying with the Rules of the Supreme Court - Direction pursuant to O 63 r 4
Legislation:
Rules of the Supreme Court O 63 r 4
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 44, s 45
Result:
Directions granting leave to file amended notice of appeal
(Page 2)
Representation:
Counsel:
Appellant : Ms T Gatell Gamir (By leave of the court)
First Respondent : No appearance
Second Respondent : Mr D Wallace
Solicitors:
Appellant : Ms T Gatell Gamir (By leave of the court)
First Respondent : No appearance
Second Respondent : Minter Ellison
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 WHITE J: This matter, which concerns a proposed appeal against the decision of a Master dismissing the plaintiff's action, comes before me by way of a reference from a Registrar for directions pursuant to O 63 r 2(4).
2 The plaintiff's claim is for damages for negligence on the part of the Commonwealth. The plaintiff was, at the material time, employed in the Royal Australian Air Force and says that the result of the intensive training which he was obliged to undergo caused his pre-existing but asymptomatic congenital condition of multiple osteochondromatosis to become symptomatic.
3 The plaintiff's claim is governed by the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
4 Section 44(1) of that Act provides:
"Subject to s 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority, or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
5 Section 45 of the Act provides, in effect, that where compensation is payable to an employee and, were it not for the provisions of s 44, the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would be liable for damages for non-economic loss suffered by the employee, the employee may, at any time before an amount of compensation is paid to him or her, elect in writing to institute an action or proceeding against the Commonwealth, a Commonwealth authority, a licensed corporation or other employee, as the case may be, for damages for such non-economic loss. Such an election is irrevocable.
6 It appears that, in the present case, the plaintiff instituted action against the Commonwealth without having made the election required by
(Page 4)
- s 45. In that situation, the plaintiff's claim is defeated by s 44 of the Act. That is what the learned Master found when he dismissed the plaintiff's action.
7 The grounds of appeal do not address that finding and are, in any case, very difficult to understand. If no compensation has as yet been paid to the plaintiff, it may be that he could now make the election under s 45 and proceed by way of a new action to claim the damages he seeks. I express no firm opinion on that point, but the appellant may wish to take legal advice thereon.
8 In these circumstances, the Notice of Appeal is defective and cannot stand in so far as the Commonwealth is concerned.
9 The appellant, who is presently undergoing treatment in Spain, is represented by his mother, Mrs Teresa Gatell Gamir. As I understand the position, Mrs Gamir does not now press the proposed appeal against the Commonwealth, and the sole basis of the proposed appeal remains the alleged claim against the second defendant.
10 The substituted Statement of Claim, drawn up by Mrs Gamir, is very difficult to follow, it pleads irrelevancies, includes evidence and is defective as a pleading. In relation to the alleged claim against the second defendant, the material allegations in the statement of claim are contained in par 41 to par 45 and par 49 to par 53, which are in the following terms:
"41)The Plaintiff sues the Second Defendant Dr Van Der Rijt in negligence under a Common Law Action. Dr Van Der Rijt was the specialist who treated the Plaintiff from 8 April 1992 until November 1995. (Dr Van Der Rijt was an independent orthopaedic doctor practising in Wagga, NSW during this period)
42) The Plaintiff considers that Dr Van Der Rijt acted negligently and irresponsibly and breached his duty of care and obligation owed to the Plaintiff. Although no previous x-rays were available for viewing Dr Van Der Rijt failed to request that any new x-rays of the long bones (Upper femurs) be taken at any time during the years (8 April 1992 until 28 November 1995) of his treatment of the Plaintiff.
43) Dr Van Der Rijt's failure to request new x-rays of the Plaintiffs femurs rendered impossible for him to
(Page 5)
- diagnosis [sic] the deformity of the Plaintiff's right femur secondary to the pre-existing condition of multiple osteochondromatosis or to advise of possible future injuries and complications, such as secondary osteoarthrosis of the right hip that the Plaintiff now suffers, of arthrosis of the knees and aggravation of multiple osteochondromatosis wrongly diagnosed as 'diaphysial acclasia'by the First Defendant and Second Defendant from 1991 until present.
- 44) The Plaintiff did not have access of any information of the contents of MEDICAL REPORTS until he left the defence service in November 1995, nor was he advised of the future complications or the severity of the condition.
45) The damages of the aggravation of multiple osteochondromatosis, and the injuries suffered by the Plaintiff were caused as a consequence of the dysfunctional and inadequate medical services provided by the first Defendant's employees, the RAAF doctors, and the irresponsibility of the Second Defendant who also acted negligently. The First and Second Defendant the 'wrongdoers'.
…
49) As a result of the negligence of the Second Defendant the plaintiff suffers aggravation of multiple osteochondromatosis, secondary osteoarthrosis of the right hip, arthrosis of the knees, arthrosis between the right fibulae and tibiae.
50) In April 1992 when the Plaintiff first consulted the Second Defendant the relevant x-rays, for the condition known as multiple osteochondromatosis, should have been requested, or later in 1993, 1994 or even 1995. X-rays are extremely important in the practice of medicine, to avoid any risk to the Plaintiff.
51) The Second Defendant should have advised the Plaintiff of the risks involved if he continued with the demands of his service (physical exercise).
(Page 6)
- 52) The Second Defendant, Mr Van Der Rijt the specialist who had treated the Plaintiff, failed to disclose (on the Statement Of Questions he completed on 15/12/97) that the Plaintiff suffers from secondary arthrosis of the right hip. He also failed to diagnose the condition of multiple osteochondromatosis.
53) Between 8 April 1992 and 4 June 1993 the Plaintiff consulted the Second Defendant twice but received no advice of medical reports or x-rays. There was a marked deterioration of the Plaintiff's body especially his legs from 8 April 1992.
Particulars whereof are pleaded as follows:-
a) Failed intentionally or unintentionally to request the previous important x-rays of the Plaintiff relating to the upper femurs (the hips) and did not request any further x-rays be taken at any time during his treatment of the Plaintiff.
b) Failed to advise the Plaintiff of proper clinical management being aware that the Plaintiff suffered of a pre-existing condition.
c)Acted with gross carelessness and incompetence by failing to inform the Plaintiff of any diagnosis at all.
d) Breached the Medical code of conduct by causing the Plaintiff to remain in the RAAF until November 1995, and by exposing the Plaintiff to multiple operations.
e) Failed to give any adequate warning or advice of future complications for the Plaintiff warning him of his pre-existing condition.
f) Failed to advise the Plaintiff of the possible complications of the operations and damaging the anomalous branch of the saphenous nerve in the right leg of the tibia.
g) Breached his duties of care and responsibility to the Plaintiff and to the medical Justice by writing misleading information in a medical questionary in relation to the Plaintiff's condition."
(Page 7)
11 The learned Master had previously allowed the appellant an opportunity to file a substituted statement of claim after the first was struck out. The above passages are taken from the minute of the second statement of claim which the appellant hoped to present. In relation to that statement of claim, which was largely directed to the claims against the Commonwealth, the learned Master said:
"THE MASTER: Just let me say a few words about why I have come to that conclusion. The minute of substituted statement of claim of 28 July which plaintiff seeks to have stand as the statement of claim is in my view entirely inadmissible. It is prolix and incomprehensible and, having read it a number of occasions, I simply can't work out what the basis of the cause of action is against either of the defendants.
This is the second time the matter has been before the court. The last time I pointed out, so far as the first defendant was concerned, the difficulty occasioned to the plaintiff by section 45 of the Safety Rehabilitation and Compensation Act. It is apparent that that difficulty hasn't been addressed and I think on that basis it's reasonable to conclude that the difficulty can't be overcome.
Insofar as the second defendant is concerned the way the statement of claim is drafted gives no hint whatever of what any cause of action might be against him and to allow the plaintiff to attempt to find some cause of action by repeated redrafts of the statement of claim would not be either in the interests of justice - and it would be highly prejudicial to the second defendant.
In my view the appropriate course is to dismiss the plaintiff's claim against both the first defendant and the second defendant, enter judgment for both defendants against the plaintiff and order that the plaintiff pay the defendants' costs of the action to be taxed."
12 In my opinion, the appellant has sought, in the defective statement of claim, to plead a cause of action against the second respondent. The learned Master has found that he did not succeed in that endeavour. It is possible that the Full Court may allow the appellant another opportunity to plead an effective cause of action against the second respondent.
13 In relation to the present appeal, the directions which I give are:
(Page 8)
14 1. The Notice of Appeal and the Grounds thereof are defective, for the reasons indicated and they are struck out.
15 2. There will be liberty to the appellant to file a substituted Notice of Appeal within 21 days of the date of this order.
16 3. The substituted Notice of Appeal is to be directed only to the learned Master's order in relation to the appellant's claim against the second respondent and not, therefore, to his order in relation to the claim against the first respondent.
17 4. The Notice of Appeal is to comply with the provisions of O 63 r 4 of the Rules of the Supreme Court.
18 5. The appellant is to pay the respondents' costs of the present Notice of Appeal and any wasted costs, including the costs of the hearing before me on 25 February 2000.
19 6. Liberty to apply.
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