Hayne v Nyst

[1995] QSC 260

IN THE SUPREME COURT

OF QUEENSLAND

No. 1917 of 1987

Brisbane

Before the Hon. Justice Williams

[Hayne v. Nyst]

BETWEEN:

DEBBIE HAYNE
  (In her own right and as Next Friend
  of ROBYN HAYNE an infant)

(Plaintiff)

AND:

PHILLIP EDMUND JOSEPH NYST
  AND
  MALCOLM STUART NYST

(Defendants)

JUDGMENT - GN WILLIAMS J

Judgment delivered 17/10/1995

CATCHWORDS      PRACTICE - O.90 r.9 - medical consultations September-October 1983 - actions commenced May 1987 - no other step - alleged loss of chance to have abortion - birth of child with rubella embryopathy - negligence dependent on conversations - held defendants prejudiced by inordinate delay.

Counsel:Daubney for applicant-plaintiff.

Williams Q.C. and Tait for respondents-defendants.

Solicitors:O.S. Andersen & Co for plaintiff.

Flower and Hart for defendants.

Hearing Date:   5 October 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 1917 of 1987

BETWEEN:

DEBBIE HAYNE
  (In her own right and as Next Friend
  of ROBYN HAYNE an infant)

(Plaintiff)

AND:

PHILLIP EDMUND JOSEPH NYST
  AND
  MALCOLM STUART NYST

(Defendants)

JUDGMENT - GN WILLIAMS J

Judgment delivered 17/10/1995

The plaintiff, Debbie Hayne, applies for leave to proceed in the action notwithstanding the expiration of more than three years since the taking of the last step therein.  The application is opposed by the defendants who, inter alia, contend that they have been prejudiced by the delay.
           The relevant facts can be fairly briefly stated.
           In September 1983, and at all material times, the defendants were legally qualified medical practitioners carrying on a general medical practice in Brisbane.  On 7 September 1983 the plaintiff consulted PEJ Nyst with respect to a red-spotted rash from which she was suffering.  According to the plaintiff she was told on that occasion that she was suffering from measles.  At that time she did not believe that she was pregnant, and there is no suggestion in the material that on the occasion of that visit there was any reference to a possible pregnancy.  The plaintiff's next visit to PEJ Nyst was on 20 September 1983 for the purpose of having a pregnancy test performed.  By that date the plaintiff believed that she may well be pregnant.  A blood sample was taken and she was asked to return in a few days to ascertain the results.  On 23 September 1983 the plaintiff again consulted PEJ Nyst and was advised that the testing revealed that she was pregnant.  On that occasion there was some discussion about German measles and the doctor ordered further tests to be carried out on the blood sample.  The testing carried out by the pathologist revealed a Rubella titre of 320.  On 10 October 1983 the plaintiff was seen by MS Nyst who informed her of the results of the Rubella testing.  According to the plaintiff he advised her that she had had Rubella but most probably many years previously.  Further, according to the plaintiff, that doctor advised her that the baby would definitely not be affected.  The plaintiff asserts that she informed MS Nyst that she would have an abortion if the Rubella was going to have an adverse effect on the baby.  That is the sum total of contact between the plaintiff and the defendants for present purposes.
           The response of the defence can be discerned to some extent from subsequent correspondence between solicitors.  There appears to be no dispute that the plaintiff consulted the defendants on the dates alleged.  In broad terms the defendants appear to be asserting that further testing was advised and a careful explanation given as to the possible harm the Rubella could cause.  Further, there appears to be a specific denial of the allegation that the defendants advised the plaintiff that her baby was not at risk.  According to the defendants the plaintiff did not return for further testing.  It is contended that on the occasion of the last visit the plaintiff indicated an intention to have her pregnancy terminated.  (In Veivers v. Connolly (1995) 2 Qd. R. 326 de Jersey J reviewed a number of authorities and concluded that, notwithstanding s. 282 of the Criminal Code, an abortion in such circumstances may be lawful in Queensland. I will assume for present purposes the correctness of that.)
           The child Robyn was born on 17 May 1984, and suffered Rubella Embryopathy; she has severe bilateral sensory-neural deafness and significant loss of visual efficiency in each eye.  There are other associated disabilities but there is no need to enumerate them.
           The plaintiff consulted solicitors in the latter half of 1984, and those solicitors wrote to the defendants on 14 September 1984, 2 October 1984 and 13 November 1984 requesting details of the consultations in September-October 1983.  The solicitors for the defendants responded by a letter dated 19 November 1984, inter alia, strongly denying the allegations of negligence.  That letter contained a brief outline of the defendants' summation of the relevant facts.  The solicitors for the plaintiff wrote further letters to the solicitors for the defendants dated 23 November 1984, 23 May 1985 and 25 July 1985.
           Nothing concrete was then done until 18 May 1987 when the writ was issued.  Therein the plaintiff was described as "Debbie Hayne in her own right and as Next Friend of Robyn Hayne (an infant)" and the endorsement thereon was "for damages for professional negligence in their capacity as Medical Practitioners for the Plaintiffs."  That writ was not served until 11 May 1988.  On 17 May 1988 the defendants entered an appearance, but the plaintiff had not yet taken any further step in the action.  No statement of claim has been delivered, though a draft thereof appears in the material supporting this application.
           In that draft allegations are made that the plaintiff consulted the defendants in 1983, that she was advised that her baby would not be affected by the Rubella, that Robyn was born with the defects referred to above, and that as result of those defects Robyn has required extensive treatment and care, has suffered pain and loss of amenities, and will continue to so suffer in the future.  It is then alleged that the loss and damage was a consequence of the negligence of the defendants.  The draft statement of claim concludes with the following paragraph:

"As a consequence of the aforesaid negligence, the Plaintiff's pregnancy was not terminated, Robyn was born suffering from grave and severe handicaps, and the Plaintiff has suffered the previously mentioned loss and damage.

And the Plaintiff claims damages for negligence, together with interest ... and costs".

In the course of argument on this application senior counsel for the defendants submitted that, as formulated in the draft statement of claim, the plaintiff was now only pursuing a claim in her own right for damages flowing from the loss of the chance to procure an abortion in about September-October 1983.  In other words, notwithstanding the claim in the heading as next friend of the infant, there was no longer a claim for damages on behalf of the infant being pursued.  Counsel for the plaintiff did not dispute that contention.
           I should record that I cannot see how there could be a viable cause of action vested in the infant child.  Assuming there was negligence as alleged on the part of the defendants that was not the cause of the child having the physical defects from which she suffers.  The child could hardly base a claim on the proposition that if the defendants had given the proper, rather than negligent, advice her mother would have had an abortion and she would not have been born (cf. the reasoning of the Court of Appeal in McKay v. Essex Area Health Authority (1982) Q.B. 1166.)
           It appears from correspondence in the material filed in support of the application that the Legal Aid Office (Queensland) was advised in about December 1986 that the prospects of success in an action brought on behalf of the infant were not good, and it would appear that no legal aid was granted with respect to any action on behalf of the child.  At the same time that Office was apparently advised that it was counsel's opinion that the plaintiff had reasonable prospect of success in the action brought on her own behalf.
           The writ was issued on 18 May 1987 on the assumption that the limitation period expired on that date being three years from the birth of the child.  Counsel for the plaintiff maintained the correctness of that on the hearing of the application.  But counsel for the defendants submitted the cause of action arose in September-October 1983 when the opportunity of having an abortion existed.  That opportunity passed well before the birth.  It is clearly arguable that all the elements of the cause of action had accrued well before the birth though it was only possible to finally quantify damages in the light of the matters revealed by the birth.  I am of the view that the contention of the defendants that the action was commenced out of time is arguable, but I will not decide this application on that point.
           Apart from the service of the writ in May 1988 there was no communication at all (at least as disclosed by the material) between the solicitors for the plaintiff and the solicitors for the defendants between 25 July 1985 and 17 January 1994.  On that latter date the solicitors for the plaintiff wrote to the solicitors for the defendants enclosing a Notice of Intention to Proceed.  That Notice, without more, did not avail the plaintiff because more than three years had elapsed since the taking of the last step in the action; leave of the court to proceed was required.  No application for leave to proceed was made until the present application was filed on 21 August 1995.
           In the letter of 17 January 1994 the solicitors asserted that they had delayed in taking the matter any further in the hope that developments in medical science could have improved the child's hearing and vision.  The immediate response of the solicitors for the defendants was to indicate an intention to resist any application for leave to proceed.  There followed an exchange of letters dated 21 and 23 March 1994, but then all went quiet again until 13 February 1995.  On that date the solicitors for the plaintiff merely asserted that they had obtained further medical reports and were making an application for leave to proceed.  As previously noted that application was not made until August 1995.
           The defendants made clinical notes with respect to the consultations in September-October 1983, but it is asserted on their behalf that they have real difficulty in recollecting the full detail of conversations with took place during those consultations.  That is readily understandable; any positive specific recollection of detailed conversation after such lapse of time would have to be viewed with suspicion.  The original clinical notes were forwarded by the defendants to their solicitor in about September 1984, and they have apparently been misplaced subsequently.  However the defendants do have a photocopy of those original notes.  Counsel for the plaintiff indicated that if the matter were to proceed no point would be taken with respect to those copies; in other words, they would be as relevant and admissible as the originals.  But that is not a complete answer to the issue of prejudice raised by the defendants.  They do not purport to be a verbatim account of all that was said at the time of the consultations.
           It is in those circumstances that this application for leave to proceed pursuant to Order 90 rule 9 is made.  The principles relevant to such an application have been considered in many cases which have come before this Court in its original and appellate jurisdiction.  One of the more recent reported cases is Dempsey v. Dorber (1990) 1 Qd. R. 418, and it is sufficient to refer to it. That decision confirmed that a satisfactory explanation for the delay was not a condition precedent to the granting of leave to proceed. Further, the reasoning therein establishes that the proper approach to such an application is to identify the relevant factors, assess the weight to be given to each, and then to determine whether, on balance, there was good reason for excepting the particular proceedings from the general prohibition imposed by the rule. In deciding that question the circumstance that a defendant was likely to suffer prejudice as a result of the delay was always relevant, and one matter the Court has always to consider is whether there has been such inordinate and inexcusable delay as would give rise to a substantial risk of prejudice to the defendant.
           More than twelve years have now elapsed since the consultations in question.  No statement of claim has yet been delivered, and that means that the plaintiff has not yet finally formulated particulars of the alleged negligence on the part of the defendants.  Assuming that the allegations which would formally be made if the action proceeded conformed with those contained in the draft statement of claim, the plaintiff's allegations centre upon conversations which occurred on the occasions of the consultations in September and October 1983.  There is no suggestion that the plaintiff made any contemporaneous note of those conversations, and the defendants did not make any contemporaneous notes of the conversations as such.  The defendants did make some clinical notes but they are brief and do not purport to be a full and accurate account of the conversations.
           It is not a case where in a positive sense a wrong diagnosis was made.  All the parties appear to be in agreement that on at least one occasion there was some discussion about possible effects of the Rubella on the baby and the possibility of the plaintiff having an abortion.  In those circumstances it is the full and accurate wording of the conversation which is critical to the issue of negligence.  Even what might be considered minor variations in the wording used by the participants in the conversation could be of critical importance on the issue of liability.  In those circumstances I am satisfied that the defendants have established that they are prejudiced by the inordinate and inexcusable delay on the part of the plaintiff in prosecuting the action.  Applying the test in Dempsey v. Dorber I am not satisfied that there is good reason for excepting this case from the general prohibition resulting from the rule.
           Two further matters should be noted.  Firstly, the plaintiff is essentially seeking damages for the loss of the opportunity of having an abortion in about October 1983.  That is the critical time for examination of her state of mind.  Clearly the child she was then carrying was at risk from her contact with Rubella at about the time of conception, but not all women would necessarily consider that the risks involved were such that the pregnancy should be terminated.  There is evidence that this plaintiff was at least minded to do so given the risks.  One of the questions which may have to be answered, if the action proceeded, was why did she not take the necessary steps to have an abortion.  Did she make a decision to accept the risk; was her then decision to run the risk subsequently affected by the fact that the child when born was significantly disabled?  To what extent has her belief that she would in October 1983 have had an abortion been affected by events which have occurred since the birth of the child?  It would be extremely difficult, if not impossible, for the Court to make an accurate finding as to her state of mind at the material time, particularly given the lack of recorded detail as to the precise advice given to her by the defendant medical practitioners.  Such considerations highlight the possible prejudicial consequences of allowing this matter to go to trial after such inordinate delay.
           Secondly, the plaintiff says in her affidavit that she has recently been advised by her solicitors of the decision in Veivers v. Connolly and of the impact that decision may have on the quantification of her claim.  It appears that she is saying that in consequence of that decision she now wishes to proceed.  In Veivers v. Connolly de Jersey J held that the plaintiff mother was entitled to recover substantial damages for the loss of opportunity to have an abortion in broadly similar circumstances.  But the fact of that decision cannot be significant in the determination of this application.  Each such case will be dependent upon the precise advice given by medical practitioners at the material time, and that means the outcome will be dependent upon the issues raised in the course of those conversations.  That only highlights, in my view, the possible prejudice created by the inordinate delay in this case.
           In all of the circumstances the application for leave to proceed should be refused with costs.