| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HASSAN -v- MINISTER FOR HEALTH [2002] WADC 193 CORAM : GROVES DCJ HEARD : 10 JULY 2002 DELIVERED : Delivered Extemporaneously on 10 JULY 2002 typed from tape and edited by Trial Judge FILE NO/S : CIVO 35 of 2002 BETWEEN : TAHANY HASSAN Plaintiff
AND
MINISTER FOR HEALTH
Defendant
Catchwords: Limitation of actions - Action involving public hospital - Medical negligence - Application made within six year period - Defendant not materially prejudiced
Legislation: Limitations Act, 1935, s 47A
Result: Leave granted to commence proceedings
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Representation:
Counsel:
Plaintiff : Ms T Gild
Defendant : Mr D M Markovich
Solicitors:
Plaintiff : Teakle Ormsby Conn
Defendant : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Black v City of Melbourne [1963] VR 34
Farr v Shire of Manjimup, unreported; SCt of WA
Smith & Ors v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240
Case(s) also cited:
Nil
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1 GROVES DCJ: This is an application made by one Tahany Hassan for leave pursuant to s 47A of the Limitations Act to commence proceedings against the Minister for Health.
2 The application is supported by the affidavit of Ms Hassan sworn 20 December 2001 with voluminous annexures attached thereto. The application is opposed by the defendant and is supported by the affidavit of the defendant's solicitor David Markovich in his affidavit sworn 4 July 2002, also exhibiting voluminous correspondence and other documentation. 3 I have had the benefit also of written submissions which have been filed both on behalf of the plaintiff and the defendant and oral argument by each of them. Insofar as is relevant s 47A of the Limitations Act requires that a prospective plaintiff gives to the prospective defendant as soon as practicable after a cause of action arises notice in writing giving reasonable information of the circumstances upon which the proposed action will be based, and requires that the action be commenced before the expiration from 1 year from the date on which the cause of action accrued. 4 It is accepted by counsel on behalf of the defendant that notice of an intended action was given and clearly that is the case when one has regard to the correspondence which has been exhibited to the affidavits. Having said that much it may be helpful for me to recite a brief history of the circumstances giving rise to the claim. 5 It appears from Annexure A to the affidavit of the plaintiff, that being an ordinary statement of claim which was filed in proceedings in New South Wales which have since been discontinued, that the plaintiff was born in Alexandria in Egypt on 27 May 1962. She has lived in Australia since the age of 19 years. English is not her first language. 6 She was married to one Omar Hassan in Egypt prior to her coming to Australia and they have five children including twins. She again became pregnant in or about September 1998 and attended her general practitioner and it became apparent that there were problems with this pregnancy. She was subsequently referred to King Edward Memorial Hospital for Women where she came under the care of a Dr Dickinson. 7 She was admitted to the hospital of 11 January 1999. It was confirmed on that occasion, as had been ascertained by prior tests, that the foetus was dead in utero. She was administered the drug misoprostol for the first time on that day at approximately 10.45 am. This drug is one
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which was in use for the termination of pregnancies where the foetus is dead in utero. 8 There is information which has been filed and exhibited to the affidavit filed on behalf of the defendant which indicates that at this time Dr Dickinson was conducting trials with the use of this drug. I am told from the Bar Table that regardless of the trials it would have been with this drug that she would be induced for the purpose of aborting the foetus. 9 It appears, and I say that in the general sense without particularity as is contained in the lengthy correspondence in the reports which have been exhibited to affidavits, that the plaintiff suffered pain and a substantial loss of blood in the 13 or more hours following the administration of misoprostol for the first time. 10 Early on the following day, 12 January 1999, the plaintiff was taken to theatre and there Dr Dickinson performed a hysterectomy. The plaintiff was subsequently discharged from the hospital on 21 January 1999. On the day prior to that, 20 January 1999, Dr Dickinson wrote a report which is headed, "This report is provided solely for the purpose of briefing legal counsel." That report is of some four pages and details the circumstances surrounding the medical care which was given to the plaintiff throughout her time in hospital. 11 On 25 January, Mr Hassan, the plaintiff's husband, wrote to the hospital an extremely emotive letter alleging an attempt to murder his wife by bleeding her to death. I might comment that the language is extreme; no doubt it might have been fuelled by reason of the circumstances of the loss of the child and the subsequent bleeding of the plaintiff. 12 Be that as it may, the letter concludes, "Until this matter is dealt with by the Court of law…". Clearly, that is giving notice to the hospital of an intended claim. That letter was preceded by the report made by the doctor, which would clearly indicate a concern that there may be a claim made against the hospital and the doctor. 13 In those circumstances, the defendant, through counsel, acknowledges that so far as the requirement to give notice is concerned that has been complied with. Indeed, there followed further correspondence as between the hospital, albeit the correspondence is on Princess Margaret Hospital letterhead, letters dated 4 and 9 February 1999 and further correspondence which followed then from the plaintiff's husband.
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14 The plaintiff sought legal advice from a Perth law firm and on 24 February 1999 that firm wrote to the hospital requesting copies of hospital records. The letter sought copies of medical records and so forth. It is the case also that on 4 May 1999 those same solicitors wrote a lengthy advice to the plaintiff concerning her prospective claim against the hospital. That is Annexure O to the plaintiff's affidavit.
15 The plaintiff and her husband subsequently moved to New South Wales in mid-1999 and they retained solicitors there. On 5 February 2001 the plaintiff obtained a report of a Dr Nash, a consultant obstetrician and gynaecologist. Following that, on 10 May 2001, the plaintiff commenced proceedings in the District Court in New South Wales against the Board of the King Edward Memorial Hospital for Women. 16 It is relevant, in the context of the argument which has been raised in opposing the application, to note that what is described as the "ordinary statement of claim" alleges negligence on the part of the hospital, its employees, servants and agents and particularises those allegations in par 23(a), (b), (c), (d) and (e) of that document. I say that is relevant because the allegations of negligence go beyond simply the fact of the concern that misoprostol was used in this instance and in the circumstances of the plaintiff to terminate the pregnancy. 17 Much of the defendant counsel's argument in opposing the application for leave was based on the fact that this drug was utilised as a matter of course and that there is nothing untoward which might be attributed to that drug so far as the plaintiff's difficulties were concerned. That may well be the case and, as I indicated to counsel, that is a matter which can only be determined at trial and with the benefit of expert medical witnesses. 18 There are other matters raised and it is open to assume that these particulars of negligence raised in that statement of claim and perhaps others will be raised if the plaintiff is given leave to commence proceedings in Western Australia. So the issue is simply not limited to the fact of the use of misoprostol; that there are other issues which indeed will be raised for consideration insofar as the allegations of negligence on the part of the hospital and its employees are concerned. Again, I make the point that those matters can only be addressed with the Court having the benefit of admissible evidence when the matter comes to trial. 19 On 28 May 2001 the defendant's solicitors advised the plaintiff's New South Wales solicitors that leave was required to commence
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proceedings out of time. The plaintiff says that that correspondence was the first occasion when she was made aware that there was a limitation period for commencing proceedings. 20 Following that, on 31 July 2001 the proceedings in the District Court of New South Wales were discontinued. The plaintiff sought the defendant's consent to commence proceedings out of time and by letter dated 15 August 2001 the defendant refused that consent, hence it was necessary for the plaintiff to make this application for leave to commence proceedings. The application was commenced by originating summons filed in this Court on 7 February 2002. Subparagraph (3) of s 47A provides as follows: "(a) Notwithstanding the foregoing provisions of this section, application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of six years from the date on which the cause of action occurred, whether or not notice as required by subsection (1) of this section has been give to the prospective defendant. (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose." Subparagraph (c) requires that before the application is made, the party intending to make the application will give notice of the proposed application to the prospective defendant. So it is in the context then of subparagraph (3)(b) of s 47A of the Limitation Act that the application comes before me for consideration. 21 It is relevant to note that in that subparagraph the provisions stated are to be read disjunctively, that is, they are separate and apart and not additional to or cumulative upon the other requirements, that is, occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise. So it requires a separate consideration of each of those aspects in determining the application.
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22 It is not the case here that the plaintiff relies upon mistake. Rather, it is on the basis of the second leg and the third leg, other reasonable cause or prejudice to the defendant, although it was said in the submissions in support on behalf of the plaintiff that the plaintiff did not issue proceedings within 1 year as she was mistaken as to the need to do so. I might comment that if she did not know then she could not be mistaken; she was simply ignorant of the requirement. It appears from her affidavit in support and it is clear from the document Annexure O that the solicitors initially advising her did not advise her of the time requirement.
23 It is also submitted on the plaintiff's behalf in reliance on the authorities of Black v City of Melbourne [1963] VR 34and Farr v Shire of Manjimup, unreported;SCt of WA; Library No 930349; 15 June 1993that a prospective plaintiff who acted reasonably in employing a solicitor to attend to his or her claim is held to have reasonable cause for not giving the statutory notice when the reason for failure to do so is the breach by his or her solicitor of his or her duty to act without negligence. 24 It is apparent from the documentation which has been tendered, and the point is raised in argument by defence counsel, that the plaintiff has had more than the Perth firm of solicitors and the Sydney firm of solicitors who commenced the proceedings in New South Wales and who in correspondence said that they were not aware of the requirements of s 47A; that she has had other solicitors, but there is no reference in her affidavit in support to what advice, if any, was obtained from them insofar as the need to commence proceedings within the limitation period was concerned. 25 Indeed, in her affidavit the plaintiff refers to retaining solicitors in Sydney, Stewart Cuddy and Mockler and another solicitor, a firm called Gergis Solicitors, who retained counsel and from whom an opinion was sought. She deposes in subparagraph (m) of par 9 of her affidavit: "To the best of my recollection, none of my legal representatives advised me of the consequences of s 47A until after receipt of the letter from the respondent's solicitors dated 15 May 2001." 26 Fair enough to complain that if it is the case, as some correspondence indicates, that the plaintiff has sought legal advice from other solicitors, there is not reference made to that fact in her affidavit which might have been made so that there was no doubt left. The statement which the complainant makes, that is, that to the best of her recollection none of her
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legal representatives advised her of the consequences of s 47A, is an all-embracing statement which must be understood in the context of all the legal representatives whom she consulted and not just those two or three who are named and whom we are aware of; that is, if there was other legal advice sought, the statement made that none advised her of the consequences must be understood in the consequence of all those solicitors and not just those named. 27 It is not open to the Court in considering that issue, and that really goes some way to the credibility of the plaintiff, it might be said, to speculate as to what the advice received from those solicitors was and it is not proper on an application of this nature to draw upon any speculation, let alone draw an inference, as to the reason for the fact that advice from other legal practitioners is not referred to. So in those circumstances I am left to accept the statement made by the plaintiff that she did not receive advice prior to 15 May 2001 insofar as the requirements of section 47A were concerned. 28 In those circumstances I am satisfied that there was reasonable cause for the plaintiff not to have commenced proceedings within the 1-year limitation period. That would be sufficient for me, subject to my later observations, to grant leave to the plaintiff to proceed with an action, but I will also proceed to comment on the other issues raised. 29 First as to prejudice to the prospective defendant. The wording of the subsection is "or that the prospective defendant is not materially prejudiced in his defence or otherwise." In Smith & Ors v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240, an action where a plaintiff was seeking leave to commence proceedings out of time, under the heading, "Is the defendant materially prejudiced?" it is reported as follows: "41. A material prejudice is one which might reasonably affect the ability of a defendant to properly defend a claim against it. Sometimes the prejudice will be consideration, occasioning a defendant expense over and above the normal cost of litigation. Extra costs and expense do not necessarily give rise to material prejudice. Material prejudice will arise when, due to delay, there is a probability that the proposed defendant will be unable to advance matters of fact, which might reasonably be supposed to affect the outcome of the litigation.
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42. The defendant has an evidentiary onus to discharge as to material prejudice but if it does so, the ultimate onus rests upon the prospective plaintiff: Baker v Shire of Albany (1994) 14 WAR 46 per Kennedy J at 56. That ultimate onus is to establish on the balance of probabilities that the defendant has not been materially prejudiced by the delay in notification of the claim." 30 It is clear from those words, in my view, that the prejudice has to be directed to the defence of the proceedings by the defendant and it is necessary that there is a probability that the proposed defendant will be unable to advance matters of fact which might reasonably be supposed to affect the outcome of the litigation. 31 The history of these proceedings, having regard to the correspondence to which I have referred earlier, the reports which were provided at an early stage and also the fact of submissions made by the plaintiff's husband to the commission of inquiry into activities at King Edward Memorial Hospital, I conclude put the defendant on notice at an early stage. I am more than satisfied that in those circumstances that there is little if any probability that there are any matters which the defendant would not be able to advance by way of defence if it proposed to do so; that is, the delay has not caused material prejudice to the defendant. So as to that complaint I don't accept that the defendant has been materially prejudiced. 32 The defendant also raises the issue that the plaintiff's claim is frivolous and vexatious or merely speculative and that it is embarrassing and/or an abuse of process. To that my response is that inevitably any proceedings which might be commenced against a public hospital may be a matter of embarrassment. It is the fact and it is a matter well documented through the media that the hospital has come under very close scrutiny and criticism in the last couple of years over treatment of patients and other matters at the hospital. 33 I am sure that the fact that these proceedings may be commenced against the hospital will only continue that embarrassment but necessarily that is a consequence of our justice system that enables aggrieved parties to sue others whom they allege to have been negligent in the conduct of their affairs. Defence counsel at length outlined to me, by taking me through the documents in support of his affidavit, the matters whereupon it might fairly be said that this claim is a "try-on", to use counsel's words, or that it is frivolous or vexatious. On an application of this nature it is
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not possible for the Court to determine finally whether or not that is the case. 34 The plaintiff asserts, as I indicated, in the now defunct proceedings, that the defendant by its servants or agents was negligent in the ways particularised. Undoubtedly those matters will be raised again and possibly other matters in support of that allegation if proceedings are undertaken. Those matters, as to whether or not the defendant, it's servants or agents were negligent necessarily will be a matter to be determined once all the evidence has been heard both for the plaintiff and in response by the defendant. In those circumstances it is not possible for me, on the basis of the information put before the Court and counsel's submissions, to adjudicate as to whether or not the proceedings are a "try-on". 35 I might observe also that it appears from the correspondence which has been exhibited that the plaintiff, or at least her husband and perhaps both of them, are obsessed by the matters giving rise to this claim. Understandably they raise their concern but that is not to say that they are not entitled to pursue matters at law. In some instances the language is extreme. It may be defamatory and it is certainly inflammatory. Those matters might be addressed in other ways but they are no reason for me to conclude that the claim is baseless or that it is without merit. 36 Furthermore, there is the issue as to whether or not it would be just to grant leave for the plaintiff to commence proceedings and I am satisfied that in all the circumstances that it would be just to grant leave so that these matters may be brought to trial and be determined one way or the other and finally, subject to the rights of appeal of the parties, ultimately. 37 In all those circumstances I would propose to grant leave. I might perhaps also add that it would be incumbent of course upon the plaintiff to pursue these proceedings with expedition and without delay and in that context the defendant might put the plaintiff on notice that the pleadings and the interlocutory matters should be dealt with in terms of the Supreme Court Rules so that these matters can get to trial and be aired and finally determined at the earliest opportunity.
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