Gilbert v Illawarra Area Health Service

[2001] NSWSC 323

CITATION:	GILBERT v ILLAWARRA AREA HEALTH SERVICE [2001] NSWSC 323
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11001/97
HEARING DATE(S):	01/03/01
JUDGMENT DATE:	30 April 2001
PARTIES :	Sonia Leigh Gilbert (now Chalk) - Plaintiff Illawarra Area Health Service - First Defendant Brian Hoolahan - Second Defendant Ian Hoult - Third Defendant
JUDGMENT OF:	Bryson J at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	11001/97
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL :	S. Kettle - Respondent G. Curtin - Appellant
SOLICITORS:	Paul J Donnelly & Associates - Plaintiff Lyn Boyd - First Defendant Ebsworth & Ebsworth - Second & Third Defendants
CATCHWORDS:	LIMITATION OF ACTIONS - extension of time for action for personal injury - plaintiff to show she was unaware of the connection between the personal injury and the defendants act or omission under Limitation Act 1969 (NSW) s60I(1)(a)(iii) - Master's finding that plaintiff was unaware was attacked on basis of cross-examination which was not dealt with in judgment - the material which was not examined was directed to present perception of the implication of available information and not to awareness at the relevant time - the parties were not called on to deal with it in detail - finding for the plaintiff was credibility based and should not be disturbed - there was some evidence to connect the other defendants to the events - consideration of extension of time to sue other tortfeasors on principle in Briggs v. James Hardie - decision to extend time affirmed.
LEGISLATION CITED:	Limitation Act 1969 (NSW)
CASES CITED:	Harris v. Commercial Minerals Ltd & Ors (1996) 186 CLR 1 CRA Ltd v. Martignago & Anor (1996) 39 NSWLR 13 Bates v. Endrey-Walder & Ors CA(NSW) - Unreported - 30 July 1998 Devries & Anor v. Australian National Railways Commission & Anor (1993) 177 CLR 472 Broken Hill Proprietary Co. Ltd & Anor v. Waugh (1988) 14 NSWLR 360 Briggs v. James Hardie & Co. Pty Ltd & Ors (1989) 16 NSWLR 549 Menzies v. Australain Iron & Steel Ltd (1952) 52 SR(NSW) 62 Hummerstone v. Leary [1921] 2 KB 664 Ellis v. Wallsend District Hospital (1989) 17 NSWLR 553 Dow Corning Australia Pty Ltd v. Paton CA(NSW) - Unreported - 24 April 1998 Wintle v. Conaust (Vic) Pty Ltd [1989] VR 951
DECISION:	The appeal from the orders of Master Harrison of 9 June 2000 is dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRYSON J.

MONDAY 30 APRIL 2001

11001/97 SONIA LEIGH GILBERT (now CHALK) v ILLAWARRA AREA HEALTH SERVICE & 2 ORS

JUDGMENT

1   HIS HONOUR: The defendants appeal from the decision of Master Harrison of 9 June 2000 on claim 2 in the Summons filed on 4 April 1997 for an order that the limitation period for the cause of action pleaded in the Draft Statement of Claim annexed to the Summons be extended. The Master extended the limitation period to 23 June 2000, and ordered that the Statement of Claim be filed and served within 14 days; and it was filed and served on 21 June 2000. The plaintiff’s claim arises out of events in November 1990. The plaintiff was born on 22 October 1971. In 1990 she was married to Mr Kevin Gilbert and was pregnant with her first child, the estimated due date for the birth being 3 November 1990. The plaintiff was under the care of Dr M.B. Williams of Nowra as General Practitioner, and of Dr Brian Hoolahan the second defendant, who practices as an Obstetrician and Gynaecologist, for specialist care. Complications developed in her health late in the pregnancy and on 23 October 1990 she was admitted as a patient to the Shoalhaven District Memorial Hospital, which is conducted by Illawarra Area Health Service (IAHS), the first defendant, suffering from high blood pressure. The plaintiff was admitted again on 1 November 1990 again suffering from high blood pressure and with Oedema and was discharged. It has not been shown for how long she was in hospital on these occasions. Then she was admitted to the hospital again on 9 November 1990 and remained there under treatment until the birth on 17 November 1990; and she continued thereafter. At about the time of her admission to hospital on 9 November or within the next few days Dr Hoolahan went on leave and her specialist care passed into other hands.

2   Although in oral evidence counsel representing the defendants gave considerable attention to establishing the date at which Dr Hoolahan ceased to attend to her care and strongly advocated the position that he did so on 12 November, I do not regard the position as clearly established. The plaintiff said, in a statement she made for her solicitor on 26 June 1993 which was put in evidence in an affidavit read on behalf of Dr Hoolahan: “At around the thirty first week of my pregnancy, my arms, legs, ankles, feet, face and hands became all swollen. My blood pressure was rising and I had protein in my urine. The Diagnosis was toxaemia, so Dr Hoolahan admitted me to the Shoalhaven District Hospital for observation and bed rest. My health was deteriorating at a fairly rapid rate. Doctor Hoolahan was going on holidays for a week, so he referred me to Dr Gray, who watched over me for a few days then transferred me to Dr Hoult.” Defendants’ counsel in cross-examination did not refer to Dr Gray and advocated a position of fact in which Dr Hoolahan handed over care to Dr Hoult on 12 November. Dr Hoult is the third defendant.

3   The plaintiff remained an in-patient and was treated conservatively. On 16 November it was noted that her Cardiotachography (CTG) (foetal heart monitor) was abnormal. The plaintiff was seen by Dr Hoult at 1800 hours on 16 November, then by Dr Hoolahan at 2000 hours. A decision was taken, it would seem by Dr Hoolahan, to induce birth on 17 November unless the plaintiff went into labour. Labour commenced at about 0300 on 17 November and later a caesarean section was performed by Dr Hoolahan; the infant was delivered still-born at 0640. The plaintiff reacted very severely to these events and alleges that she suffered psychiatric injury and a hysterical action, and other adverse consequences including a strong sense of anger and distress directed at Dr Hoult, an acute phobia about hospitals and particularly about the Shoalhaven District Memorial Hospital, intrusive thoughts and other adverse reactions. The plaintiff was convinced that Dr Hoult’s advice and treatment had been inadequate; she was convinced of this on and after 17 November 1990, and adopted a position towards Dr Hoult which was critical to the point of irrational hostility.

4   The claims in the Statement of Claim are not based on alleged breaches of contract. It is alleged that IAHS managed the hospital and provided and held itself out as offering and providing medical, surgical, specialist nursing and other treatment for members of the public. It is alleged that each of Dr Hoolahan and Dr Hoult was an obstetrician and gynaecologist practising at the hospital and as such offering and providing specialist medical surgical and other treatment for members of the public requiring the same. There are no detailed allegations dealing with the relationship between the doctors and IAHS. There are numerous allegations of negligence; those against the doctors are in general terms and could relate to negligence occurring at earlier stages during the plaintiff’s hospitalisation from 9 November on, as well as to the events of 16 and 17 November 1990, while the same allegations of negligence are made against the hospital together with allegations that the hospital failed to secure the attendance of a competent medical specialist and failed to ensure that its agents possessed the required degree of skill. The criticisms made in the particulars are not highly concrete and are not carried in any degree to an exposition of the practices of the time.

5 On these allegations the plaintiff’s cause of action accrued on 17 November 1990 or at some time in the previous period commencing on 9 November and by 4 April 1997 her claim for damages was statute-barred by s.18A of the Limitation Act 1969, which fixes the limitation period at three years from first accrual. However the plaintiff claimed postponement of the bar under provisions of Pt.3 of the Act. Her claim was not presented under subdiv.(2) and s.60C, for reasons which were not explored before me but which I attribute to a view that the limitation period, as extended under that subdivision, must expire on or before 17 November 1998, which was after the issue of the Summons but before the hearing. However that may be, the application was presented and determined under subdiv.(3), in particular ss.60G and 60I. I set out ss.60F, 60G and 60I of that subdivision.

60F. Purpose of this Subdivision
The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.

60G. Ordinary action (including surviving action)
(1) This section applies to a cause of action that accrues on or after 1 September 1990, 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 for an order under this section 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 as it determines.

60I. Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered; or
(ii) was unaware of the nature or extent of personal injury suffered; or
(iii) was unaware of the connection between the personal injury and the defendant's act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)--(iii).
(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.

6   The unawareness in para.(iii) must have existed at the expiration of the limitation period, that is November 1993, and it must have continued on 4 April 1994, that is until the period of 3 years before commencement of the proceedings referred to in para.(b). The Master instructed herself correctly on the operation of these periods.

7 As the terms of s.60F show the concern of subdiv.(3) is causes of action where the plaintiff was unaware of the fact, nature, extent or cause of the injury at the time fixed by s.18A. The plaintiff’s state of awareness is a central concern. Section 60I when it states the matters to be considered by the Court states matters which revolve around knowledge and awareness. The plaintiff must satisfy the Court as to the matters in both para.(a) and para.(b) of subs.(1), and para.(a) relates only to the plaintiff’s actual knowledge and awareness while para.(b) can relate to matters of which the plaintiff ought to have become aware. The workings of s.60I were expounded in the judgment of the High Court of Australia in Harris v. Commercial Minerals Limited & Ors (1996) 186 CLR 1, where their Honours pointed out at 9-10 the subjective nature of the issue raised by para.(a), in contradistinction to para.(b). It was their Honours’ view that “… neither reasonableness nor constructive knowledge is an element of sub-s.(1)(a) …” and in so deciding their Honours approved a holding by Clarke JA in CRA Limited v. Martignago & Anor (1996) 39 NSWLR 13 at 18-19. This view of the workings of para.60I(1)(a) is well entrenched in authority; see the judgment of Sheppard AJA in Bates v. Endrey-Walder & Ors CA (NSW) unreported 30 July 1998 and citations there made.

8   The learned Master reviewed the issue whether the plaintiff was unaware of the connection between personal injury and the defendant’s acts or omissions in the judgment at paras.16-23 and after reviewing evidence found at para.22:

I have come to the view that the plaintiff did not realise that Dr Hoolahan should have induced her baby on 10, 11 or possibly 12 November 1990 or immediately on the night of 16 November 1990 until after she was told by Ms Pendlebury on 18 September 1996. It was on or after the 18 September 1996 [she knew] that she had a cause of action against Dr Hoolahan.

9   (I have supplied two words which from the context were obviously intended.) Ms Pendlebury was an officer of the Health Care Complaints Commission. At para.23 the Master went on to point to the part taken by constructive knowledge in para.60I(1)(b), as distinguished from para.60I(1)(a). The Master gave appropriate consideration to other matters in subdiv.(3), the gateway in para.60I(1)(b), which may involve the concept of constructive knowledge, and the discretionary question and “just and reasonable” test in subs.60G(2). The Notice of Appeal and counsel’s submissions did not attack the passages in the judgment where the Master instructed herself on the applicable law. The contentions were to the effect that the Master had not correctly applied the law on which she instructed herself, and that her reasoning and exposition were not adequate.

10   The IAHS was represented by a different solicitor to the firm representing Dr Hoolahan and Dr Hoult, but all defendants had common representation by counsel before Master Harrison, as they did before me. As the Statement of Claim was at that stage no more than a draft annexed to the Summons, no defendant had filed a defence and no defendant went into evidence on the substance of the events of November 1990 before the Master, although many documents relating to the controversy including business records and hearsay materials were put in evidence. The grounds taken in the Notices of Appeal were mainly directed against the Master’s treatment of the issue under subpara.60I(1)(a)(iii). In IAHS’ Notice of Appeal the grounds were:

1. The Master erred in finding the Respondent was unaware of the matter set forth in s.60I(1)(a)(iii) of the Limitation Act 1969 until within 3 years prior to the making of the application to extend time.

2. The Master erred in failing to give any reasons for her finding that the Respondent had established there was evidence establishing the Respondent had a cause of action against it.

3. The Master erred in finding there was evidence establishing the Respondent had a cause of action against it.

11   The Notice of Appeal on behalf of Dr Hoolahan and Dr Hoult raised a similar attack on the Master’s finding in Ground 1. The grounds special to their notice of appeal were as follows:

2. In relation to Dr Hoult, the Master erred in failing to give any reasons for her finding that the respondent was unaware of the matters set forth in section 60I(1)(a)(iii) of the Limitation Act 1969 until within 3 years prior to the making of the application to extend time.
3. In relation to Dr Hoult, the Master’s finding that the respondent was unaware of the matters set forth in section 60I(1)(a)(iii) of the Limitation Act 1969 until within 3 years prior to the filing of the Summons contradicts her finding that the respondent was so aware in 1993.
4. The Master failed to use her position of advantage, or palpably misused her position of advantage, in holding the respondent was unaware of the connection between the acts and omissions of Dr Hoolahan until within 3 years prior to the filing of the Summons.
5. In relation to Dr Hoolahan, the Master erred in finding the respondent was unaware of the matters set forth in section 60I(1)(a)(iii) of the Limitation Act 1969 until a time being within 3 years prior to the filing of the Summons in relation to Dr Hoolahan.

12   The Master’s attention was directed principally to the plaintiff’s awareness of the connection between her personal injury and an act or omission of Dr Hoolahan. It was appropriate that attention was directed in this way, for reasons which will appear later. The Master’s disposition of the question under subpara.60I(1)(a)(iii) was based on the credibility of the plaintiff and should be approached on appeal in the way indicated in Devries & Anor v. Australian National Railways Commission & Anor (1993) 177 CLR 472 at 479 (Brennan Gaudron and McHugh JJ). The Master found, for reasons which were stated (para.2): “I formed the opinion that she (the plaintiff) was giving truthful evidence.” It is not possible for me to overrule this factual finding, as I cannot capture the atmosphere in the courtroom as the plaintiff gave her evidence, and I cannot discern whether there was any basis in the plaintiff’s demeanour for coming to a different view and deciding that the plaintiff was engaging in evasion or for some other reason should have been treated as unreliable. When she had difficulties with exact recollection of the day of an event, the difficulties appear clearly from her answers in context, and I do not regard these difficulties as indicating any lack of sincerity as a witness.

13   In her affidavit the plaintiff said (para.31): “On the 18th of September 1996 I was informed by my present solicitors that the Health Complaints Tribunal considered that Dr Hoolahan was also a proper party for the purposes of the proceedings in the Complaints Tribunal. I made a formal complaint against Dr Hoolahan on 10 December 1996.” Her oral evidence is to the effect (t.5) that before she saw a report of Dr Metcalf, a Psychiatrist whose report is dated 11 September 1995, she had had discussion with her then solicitor about possibly taking proceedings against Dr Hoult, but there was no discussion of involvement of Dr Hoolahan although she was aware that he had carried out the emergency caesarean operation. She said in oral evidence in chief (t.5/29) “Q. As far as you were concerned there was no suggestion that he had done anything wrong in the way he managed your pregnancy? A. No.” She was then referred to para.31 of her affidavit about information from the Health Care Complaints Commission and in her answer said, departing slightly from para.31, that she was telephoned by Ms Rosie Pendlebury from the Health Care Complaints Commission. Her evidence about the conversation was as follows (t5/52):

A. Okay, when she phoned me she said, asked if I was taking any action against Dr Hoolahan? And I said, ‘No’, and enquired as to why she was asking. And she said on reviewing my case and going through all the documents that she had, there may well be, I think she said ‘a cause of action against Dr Hoolahan’ as well as the Illawarra Area Health Service.
BYRNE: Q. What did you understand that to mean: ‘Cause of action’?
A. Well that he was partly at fault for the death of my daughter.
Q. And that was on 18 September 1996?
A. Yes, it would have been around the same time. I am not sure on the same day or not.
Q. Around that, within a week or two, either side of 18 September 1996?
A. Yep.

14   That is to say her case with respect to para.60I(1)(a)(iii) was clearly that she became aware of the connection between her injury and an act or omission of Dr Hoolahan in September 1996.

15   The defendants’ position on this issue revolved around statements in a report dated 8 June 1993 sent by Dr David W. Pfanner to Messrs Lindsay Brien & Associates, solicitors of Berry who were then acting for the plaintiff. This report made a review of events as recorded in a letter from Dr Hoult of 2 February 1993 and a copy of in-patient and out-patient records from Shoalhaven District Memorial Hospital relating to the plaintiff. (Those records were not complete; the whole of the hospital records relating to the plaintiff’s treatment was not available for her legal representatives, after delays and difficulties, until January 1998). Dr Pfanner made some comments on the management of the case which included the following.

On the final admission 9.11.90 the BP was 158.76, there were severe odema and moderate proteinuria.

This clearly was developing into a case of severe pregnancy induced hypertension to severe pre-eclampsia.

I believe that by 10.11.90 when the signs had not abated after one day as an inpatient steps should have been taken to deliver this patient urgently. As the state of the cervix was found to be unfavourable for induction then I believe Caesarean Section should have been undertaken.

I believe further that the CTG performed 1800 hours on 16th November was sufficiently abnormal to demand urgent attention.

In summary then this was a case of severe pre-eclampsia, its severity should have warranted urgent delivery well before the abnormal CTG was recorded.

16   If Dr Hoolahan was treating the plaintiff on 10 November, this passage should convey to an informed and insightful reader knowledge of a connection between the plaintiff’s personal injury and an act or omission of Dr Hoolahan. The plaintiff had access to Dr Pfanner’s report. To my mind the Master’s statements of the applicable law and her treatment of the facts show that, as was correct, she treated the question for consideration when addressing para.60I(1)(a)(iii) as the actual state of awareness of the plaintiff, not what the plaintiff ought to have become aware of on having Dr Pfanner’s report nor any state of knowledge which should be attributed to her on the basis of what it was reasonable for a reader of Dr Pfanner’s report to understand. What it was reasonable for such a person to understand had more than one place in consideration of the plaintiff’s application, but it had no place in consideration of the issue under para.60I(1)(a)(iii), and no challenge is made in the Notices of Appeal to the Master’s treatment of the issues under s.60I(1)(b) and s.60G(2) in which it has a place.

17   In her judgment the Master referred (para.20) to the evidence in the plaintiff’s affidavit and the evidence in chief which I have mentioned, and also reviewed (para.21) the plaintiff’s evidence about the impact on her of reading Dr Pfanner’s report about 23 June 1993. The upshot of the plaintiff’s evidence was her answer, at t.10, line 33, to the effect that she did not really know, when it was put to her “You understood when you read that report that what Dr Pfanner was saying was that both Dr Hoolahan and Dr Hoult should have done things, in his opinion, that they have not done”. As the Master observed, Dr Pfanner did not specifically refer to either Dr Hoolahan or Dr Hoult by name in his report, and the plaintiff understood when she read the report that Dr Pfanner was being critical of Dr Hoult. An insightful person, or a person with any skill or some small experience in analysing medical reports might well have drawn the conclusion, even though Dr Hoolahan was not mentioned, that Dr Pfanner was indicating a view that treatment given at a time when the plaintiff was under the care of Dr Hoolahan was defective. The matter relevant for the purpose of para.60I(1)(a)(iii) was not whether the connection was obvious, or obvious to a reasonable reader, or should have been obvious; the relevant matter was whether the plaintiff actually perceived the connection.

18   There is a high degree of abstraction in an inquiry in which the burden is on the plaintiff to show that she was unaware of something, where the thing of which she is to show she was unaware is itself an abstraction, being a connection between a personal injury and the act or omission of another person. To my reading the cross-examination and the plaintiff’s answers to it made very little approach towards dealing with this abstract issue. Counsel referred me to passages in cross-examination where he took the plaintiff to passages in the report, presented her with lines of reasoning and obtained her acknowledgment of conclusions he put forward; but that acknowledgment was given at the time of her giving evidence, and was not an acknowledgment of what she had perceived when she saw Dr Pfanner’s report in 1993, or at any earlier time than when she came to be cross-examined. Little or none of the cross-examination was put in a form which would have elicited an acknowledgment about her earlier state of understanding.

19   The cross-examination appears to me, from reading it in the transcript, and may well have appeared to the Master, to lose much of its impact because of an unfortunate tendency of the cross-examiner to frame questions in ways which overstated the effect of matters which had or appeared to have been established earlier. In cross-examining, counsel appears at t.8 lines 14 to 29 to have confused Dr Hoult with Dr Hoolahan. Then at lines 38 to 44 he had difficulty putting a clear position about when Dr Hoult took over care of the plaintiff. Then at lines 46 to 53 the plaintiff agreed to the effect that Dr Hoolahan looked after her until 12 November when Dr Hoult took over but said that was the date she roughly recalled but it might not be the exact date. Counsel then moved to putting implications from Dr Pfanner’s expressions of view about treatment which should have been carried out by 10 November on the basis that the plaintiff was under the care of Dr Hoolahan on 10 November, with which the plaintiff agreed, according to her recollection (t.9, lines 30-32). The plaintiff then recurred (lines 48-49) to her uncertainty about when she was under the care of Dr Hoolahan saying it could well have been 9 November. Counsel then said (t.9, line 51):

Q. When I asked you before, dates, to the best of your recollection, it was on the 12th of November?
A. Yeah, as I said to the best of my recollection but it may not have been.

20   This was a particularly unfortunate question because the end result of the plaintiff’s earlier evidence particularly at t.8 was that she had not said that to the best of her recollection she was under Dr Hoolahan’s care until 12 November. Counsel recurred to this suggestion - see t.10, line 53 although the suggestion did not have a proper basis and appears to have served to create some confusion. After tendering a statement of the plaintiff which referred to Dr Grey having some part in her care, counsel did not refer to Dr Grey in the cross-examination or do anything to establish whether or not he had any relevant part. All in all it is not surprising that the cross-examination did not have the impact on the Master as tribunal of fact which was hoped for.

21   There was further markedly confusing material at later stages in the cross-examination. I set out a passage at t.10-11 opening with an answer about the plaintiff’s state of knowledge of which I earlier gave an abstract.

Q. You understood when you read that report that what Dr Thanner was saying was that both Dr Hoolahan and Dr Holt should have done things, in his opinion, that they had not done.
A. Well I don’t really know to be honest.
Q. Let’s talk about your honesty. A moment ago when I asked you about the third last paragraph on page three of Dr Thanner’s report, you agreed that you read that as being criticism of Dr Hoolahan, is that what you said earlier today, wasn’t it?
A. Of Dr Hoolahan? What paragraph, sorry?
Q. The third last paragraph on page three, the paragraph beginning: ‘I believe that by ten November 1990’?
A. That, yeah, I believed that he was critical of Dr Holt yes, that’s right.
Q. No, Dr Hoolahan is the doctor you identified earlier when I was asking you questions as being the doctor who ought to have done the things that that paragraph refers to, that is what you said earlier today, isn’t it?
A. I agreed it was on or about the 12th, yes.
Q. Earlier today you said, to the best of your recollection Dr Hoolahan was looking after you up until the 12th, is that what you said, to the best of your recollection?
A. Right, yep.
Q. That’s true, isn’t it?
A. To my recollection, yes.
Q. So on the 10th of November you were being looked after by Dr Hoolahan, true, isn’t it?
A. Yes, as far as I know.
Q. So in that third last paragraph Dr Thanner is being critical of Dr Hoolahan, that’s true isn’t it?
A. Yeah, if that was his opinion, yes.
Q. His opinion criticising Dr Hoolahan?
A. Yes.
Q. And in the next paragraph he is being critical of Dr Holt, that’s correct isn’t it?
A. Yes.

22   Much was claimed for this passage and admissions attributed to it, and there were complaints that the Master did not deal with it. The passage is severely blemished by the suggestion that the plaintiff had agreed that she read Dr Pfanner’s report as being criticism of Dr Hoolahan; however she had not agreed to any such thing and her last answer on the subject had said that she did not know, and she went on to repeat her position that she understood Dr Pfanner’s report as critical of Dr Hoult. The last questions and answers of the passage contain reasoning in which the cross-examiner sought to prevail on the plaintiff, as she sat in the witness box answering questions, on the meaning and effect of the report. The questions deal only with what the report means and what the plaintiff perceived while being cross-examined, the evidence has nothing to say about what she perceived when she saw the report in 1993, and has no force to contradict her earlier evidence that she did not know that Dr Pfanner was saying that Dr Hoolahan should have done things that he had not done.

23   At a later point after reopening her evidence in chief by leave the plaintiff gave an account at t.12 and 13 of how she came to realise when she knew of the findings of the Health Care Complaints Commission that Dr Hoolahan should have induced labour at 8 o’clock on 16 November rather than leave it to the next morning. In the cross-examination which followed, defendants’ counsel again put to the plaintiff implications from the text of Dr Pfanner’s report; her response, at t.14, line 7 was:

A. I am trying to explain, sorry, okay, at that time that I read this, and up until when we received the findings from the Health Care Complaints Commission, the only person I held accountable in my heart and in my head was Dr Hoult, okay? So by reading this okay, perhaps I was young and perhaps I was stupid but I didn’t read between the lines, okay? As far as I’m concerned this confirmed that Dr Hoult was negligent, okay? I didn’t take into consideration, I didn’t know, I didn’t look at anything else. This confirmed to me that Dr Hoult had killed my baby, end of story. Now, yes, I read this and I think, okay, yes, Dr Hoolahan should have done something at this date, and at this date, and at this date, but at the time and up until the AMA findings, or HCCC, that’s solely where my mind lay blame, was on Dr Hoult. I think that’s it, yes, yep.

24   The cross-examiner then returned to subjects which had been dealt with earlier, including the unfortunately excessive suggestion at t.14, line 34: “To the best of your recollection was, your evidence, he looked after you until the 12th, that’s true isn’t?” The plaintiff’s answer was “Yes” but it is difficult to know what the tribunal of fact would make of it when it was introduced by a mis-statement of the effect of the earlier evidence. The cross-examination then went on to the implications to be drawn from the terms of Dr Pfanner’s report leading to this passage (t.14, line 56).

Q. Please, madam, what is being said there, and what you understood when you read that, was that at the particular time steps should have been taken to delivery your baby, that’s what it says, isn’t it?
A. That’s what it says, yes.
Q. That’s what you read when you received the report?
A. Yes.
Q. And the doctor who ought to have done it, on that chronology, is Dr Hoolahan, that’s true, isn’t it?
A. From those, yes but at the time of reading it --
Q. Excuse me, that is as plain as day, isn’t it; that on the 10th of November 1990 it was Dr Hoolahan who ought to have taken the steps, plain as day, isn’t it?
A. Sitting here today, yeah.
Q. Plain as day when you read it, isn’t that right?
A. No, not really, no.

25   It appears to me that in substance the plaintiff adhered to her position as given in evidence in chief in these answers; and it was certainly reasonably open to the Master to regard her evidence as having that meaning. The cross-examiner then went to a line of questions which suggested that it was likely that the plaintiff had at an early stage instructed her first solicitor of some matter which involved a complaint against Dr Hoolahan, without producing any clear result.

26   Defendants’ counsel submitted that his cross-examination had focused on what the plaintiff believed and which doctor her belief concerned when she had read Dr Pfanner’s report in 1993. Upon reading the transcript I see the focus of the cross-examination quite differently; it focused on what the plaintiff could be brought to understand when her attention was forcefully directed to implications of the report.

27   It was submitted that in relation to Dr Hoolahan the answers to cross-examination were sufficiently clear that it should be held on appeal, within the principle referred to in the passage in Devries v. Australian National Railways Commission which I referred to earlier, that the finding was wrong. It was said that the form of the answers late in the cross-examination were definite, firm and affirmative, in contrast with tentative dealing earlier, so that it clearly appeared that the finding was wrong. Alternatively it was submitted that the evidence was so critical to the issue of the plaintiff’s unawareness that the Master should have referred to it in the judgment and dealt with it in some way, and that the finding should be reviewed for that reason; that the Master did not deal with critical aspects of the evidence, critical on their face, which differed from the evidence quoted in the judgment.

28   In my view, given the learned Master’s view of the plaintiff’s credibility, the conclusion which she reached at para.22 was reasonably open and indeed, it would have been very difficult to reach any other conclusion. The exposition given by the Master of the reasons for the conclusion are, in my view, reasonably adequate and reveal the substance of the reasoning on which the conclusion was based. The further passages in evidence which it was complained that the Master should have considered and dealt with did not in my opinion call for detailed examination because they did not have the effect contended for. The plaintiff’s evidence about when she came to see the relevant connection was clear and emphatic and unqualified, and obtaining her acknowledgment at the time of giving evidence of implications which she had not seen earlier had no real bearing on that matter.

29   In words used by the plaintiff’s counsel in submissions, the cross-examination took the plaintiff through the logic of the situation, and under cross-examination she reached the conclusion which the defendants contend is the logical conclusion, but this is a conclusion she drew at the time of the cross-examination and not the conclusion she drew in 1993 when she saw Dr Pfanner’s report. There was no evidence that the conclusion which it was suggested was produced by the application of logic to Dr Pfanner’s report was a conclusion which she drew at any prior time to the day on which she was cross-examined.

30   The learned Master’s findings included findings at para.2(7) that her statement to her solicitor of 26 June 1993 “… mentioned Dr Hoolahan and how relieved she was to have him back in charge. At no stage in the statement did she attach any blame upon Dr Hoolahan.” It was clear, although not expressly found by the Master, that the plaintiff saw Dr Pfanner’s report dated 8 June 1993 soon after it was sent to her then solicitor. The Master set out at para.2(9) Dr Pfanner’s conclusion including the passages critical of treatment on 10 November and on 16 November and found as follows in para.2(7):

On 11 November 1992 the plaintiff approached Johnston Brian and Associates, solicitors at Nowra with instructions to commence proceedings against Dr Ian Hoult. On 26 June 1993 the plaintiff supplied a lengthy statement to her then solicitor. She stated that around the 31st week of her pregnancy her arms, legs, feet, face and hands all became swollen. She was diagnosed as suffering from toxaemia. She asked Dr Hoult if she could be induced but he refused. The statement mentioned Dr Hoolahan and how relieved she was to have him back in charge. At no stage in the statement did she attach any blame upon Dr Hoolahan. The plaintiff also stated that it had been three years since the birth of her daughter, and since then she has been riddled with guilt every day and suffered from emotional trauma. She spoke of breaking down in tears, feeling suicidal and how she was emotionally unable to get pregnant again for fear of losing another child. She suspected that it would always be that way.

31 It seems to be involved in the findings at para.2(7) of the judgment that the plaintiff was aware in 1993 if not earlier of a connection between acts or omissions of Dr Hoult and her personal injury. The plaintiff’s evidence was not directed to showing that she was unaware of that connection in relation to Dr Hoult at any time which could establish, in terms of s.60I(1)(b) that the application was made within 3 years after she became aware of the connection in relation to Dr Hoult. If only Dr Hoult had been involved and there had been no other potential defendant it would not have been possible for the plaintiff to obtain an order under subdiv.(3) in proceedings commenced as these were on 4 April 1997. In IAHS’s Notice of Appeal Grounds 2 and 3 challenge the way in which the Master dealt with IAHS in that there was no finding dealing with a state of unawareness as in s.60I(1)(a)(iii) in relation to the hospital, and there was no finding establishing that there was evidence of a cause of action against the hospital. Indeed in the judgment the learned Master gave very little attention to the claim against the hospital. However in my opinion very little attention was required, having regard to principles established by authority on the operation of subdiv.(3) under which the limitation period may be extended so as to enable proceedings to be brought against other alleged tortfeasors in addition to the alleged tortfeasor in respect of whom the plaintiff has passed barriers in s.60I.

32   In my understanding the law is established by the decision of the Court of Appeal in Broken Hill Proprietary Co. Ltd & Anor v. Waugh (1988) 14 NSWLR 360 and is further shown by the judgments of Hope JA and Rogers AJA in Briggs v. James Hardie & Co. Pty Ltd & Ors (1989) 16 NSWLR 549, in which Broken Hill Proprietary Co. v. Waugh was followed. Those decisions related to s.58(2)(b) of the Limitation Act 1969 and were given before the enactment of subdiv.(3). In BHP Co. v. Waugh the Court of Appeal, for reasons stated by Clarke JA at 372 applied to an application under s.58 the approach taken in trials where a plaintiff has sued multiple defendants as explained in Menzies v. Australian Iron and Steel Ltd (1952) 52 SR (NSW) 62. The basis on which the Court acts was explained in greater detail in the judgment of Hope JA in Briggs v. James Hardie at 552-554 so as to show, in a full way, the possible injustices which may follow where a defendant is dismissed from proceedings before the evidence is concluded although it remains possible that another defendant may lead evidence which established the liability of the dismissed defendant. It actually happened in Hummerstone v. Leary [1921] 2 KB 664 that the remaining defendant led evidence which threw the blame on to the party who had been dismissed.

33   Hope JA then said at 554D to G:

As I would understand this principle, it does not mean that in no circumstances can one of a number of defendants be dismissed from an action. Indeed such a course is often adopted. But where a plaintiff brings an action against two defendants alleging that one or both are liable, and there is some evidence to connect each defendant with the events the subjects of the action, then provided the plaintiff establishes a prima facie case against one of the defendants, the other defendant will not be dismissed from the action until the whole of the evidence has been heard. As it seems to me this means that a plaintiff is entitled to bring an action against two defendants if he has evidence to establish a prima facie case against one of the defendants, and also has evidence pointing to the possibility of the other defendant being liable.
What bearing does this principle have upon the determination of the question whether an applicant has satisfied the requirements of s 58(2)(b). The section is a remedial provision, designed to give relief against what otherwise might be, and has been established in many cases to be, the harshness of the operation of the general limitation provisions. It calls for a liberal construction. In Broken Hill Pty Co Ltd v Waugh it was held by this Court that this principle is to be applied to applications under s 58. Leave to re-argue this decision (which was brought to the attention of the parties after the hearing of the appeal) was neither sought nor given, although it was submitted that it was wrong.
Applying this principle I am satisfied that even if the applicant did not succeed in establishing the existence of evidence upon the basis of which it could be held that the subsidiary was the agent of either of the principal companies, that the corporate veil could be lifted to make either of those companies liable, or that those companies were otherwise liable in negligence, he did establish that there was a possibility that that evidence existed.

34   The working of the principle stated by Hope JA fully explains the Master’s concentration of attention on the case relating to Dr Hoolahan, and also explains the same concentration of attention in the evidence presented in the plaintiff’s case. There clearly is some evidence to connect IAHS and the hospital with the events the subject of the action because the plaintiff was a public patient receiving treatment in the hospital from a medical specialist who provided attention, treatment, advice and surgical procedures in the hospital, and with nursing and other hospital services which must be taken to have been provided by staff employed by IAHS. It was entirely clear that there was some evidence to connect IAHS and the hospital with the events, and it was appropriate that the Master gave little attention to the incontestable.

35   There is practically nothing in the evidence about the relationship between each doctor on the one hand and IAHS on the other, and it would have been very difficult to make any approach to an examination of the prospects of the plaintiff’s success against IAHS on the evidence before the Master. The Master did not do so and in my opinion it was not necessary for her to do so. The considerations affecting the question whether the hospital is liable in respect of acts or omissions of either the doctors, whether vicariously liable or liable in respect of a duty of the hospital itself, are elaborate and the answer to the question when tried be based on material which is very largely under the control of and accessible to the defendants and not the plaintiff. The considerations were addressed in the dissenting judgment of Kirby P in Ellis v. Wallsend District Hospital (1989) 17 NSWLR 553.

36   In my opinion the reasons which led the Court of Appeal to its established view in relation to s.58, as stated by Hope JA, are equally applicable to an application under subdiv.(3).

37   In Dow Corning Australia Pty Ltd v. Paton (CA (NSW) 24 April 1998 unreported) Beazley JA, in a judgment with which Mason P and Handley JA agreed, proceeded on the basis that Briggs v. James Hardie is the applicable law under subdiv.(3) while noting that the opposite conclusion had been arrived at by the Full Court of the Victorian Supreme Court in Wintle v. Conaust (Vic.) Pty Ltd [1989] VR 951. However it could be said that following Briggs v James Hardie was not essential to the decision in Dow Corning. Beazley JA distinguished Briggs v. James Hardie because the case before her Honour involved successive tortfeasors, and said “Briggs v. James Hardie however was a case involving joint tortfeasors. This case, in so far as it relates to Dr Meares and Dr Rea, involves successive tortfeasors. In my opinion there is no basis for the operation of the principle in relation to successive tortfeasors.” Her Honour had under consideration claims against Dr Meares in respect of advice, treatment and surgery carried out in 1979 and against Dr Rea in respect of consultation and surgery carried out in 1990. I would respectfully say that, to my understanding, Beazley JA did not see the claims against the two doctors as sufficiently related to each other to call for the application of the practice in which both are retained as parties until all evidence against each has been given. Briggs v. James Hardie could have been spoken of as involving successive tortfeasors, being the successive employers of the plaintiff in the mine at Baryulgil and the persons who stood behind them; some of those sued could be classified as successive tortfeasors and some as joint tortfeasors, but all were involved by a closely connected and continuous series of events related to the plaintiff’s employment. In the present case it may not be correct to classify all defendants as joint tortfeasors, but the claims against them are all so closely connected as to make the principle referred to by Hope JA applicable to hearing proceedings against them all. Hope JA’s references to cases arising out of traffic accidents involving more than one vehicle suggest that the persons to whom the principle extends may include concurrent tortfeasors as well as joint tortfeasors, concurrent either in time of acts or omissions or in causation of damage.

38   Defendants’ counsel submitted that as evidence and findings established that the plaintiff became aware of the connection between her injury and acts or omissions of Dr Hoult in 1993, probably in June 1993, it was necessary that the plaintiff make her application within 3 years of June 1993, which she had not done; it was submitted that knowledge as in para.60I(1)(a)(iii) at June 1993 would produce incapacity to make an order under s.60G against Dr Hoult. I do not accept this submission because the application of the principle in Briggs v. James Hardie means that if the plaintiff succeeds in respect of Dr Hoolahan she can obtain an extension of time in respect of joint or concurrent tortfeasors even though they would otherwise be protected by a limitation period.

39   The Master’s concentration on the application of s.60I(1)(a) in relation to Dr Hoolahan and her giving relatively little attention to the case against Dr Hoult or against the hospital in the context of s.60I(1)(a) were criticised and complained of as errors but in my view are quite sufficiently explained and justified by the application of the principle referred to by Hope JA in Briggs v. James Hardie.

40   Before the Master the plaintiff also sought a favourable finding on s.60I(1)(a)(ii); the Master found against the plaintiff and on appeal there was no contention that I should overturn her findings.

41   During the hearing I refused leave to amend the Notice of Appeal and widen the grounds of attack, for reasons which I then stated.

42   For these reasons I have decided to dismiss the appeal.

43   Order

(1) The appeal from the orders of Master Harrison of 9 June 2000 is dismissed with costs.

Last Modified: 05/01/2001