Hayne v Nyst & Nyst

[1996] QCA 354

COURT OF APPEAL  [1996] QCA 354

MACROSSAN CJ
DAVIES JA
de JERSEY J

Appeal No 242 of 1995

DEBBIE HAYNE (IN HER OWN RIGHT AND AS
NEXT FRIEND OF ROBYN HAYNE AN INFANT)             Appellant

and

PHILLIP EDMUND JOSEPH NYST
MALCOLM STUART NYST  Respondents

BRISBANE

..DATE 04/09/96

JUDGMENT

THE CHIEF JUSTICE:  The appellant had sought leave to proceed under Order 90 rule 9, not having taken a step in her action for more than three years.  The Judge below refused leave and the appellant now appeals to this Court.  The defendants in the action were medical practitioners conducting a general practice.  The action arose out of the appellant's consultation with them in 1983.

The first consultation on 7 September 1983 was with
Dr P E J Nyst, the first respondent.  The appellant was informed that she had contracted measles.  She consulted again on 20 September 1983 for a purpose which resulted in pregnancy tests being taken, the appellant thinking then that she could be pregnant.  She was told on 23 September 1983 by the first respondent that she was pregnant. 

There was some discussion about measles and further tests were taken.  On 10 October 1983 the appellant was told by the second respondent, Malcolm Stuart Nyst, that she had a Rubella-type infection and it had probably been contracted at some earlier time.  The appellant claims she was then told that her baby would definitely not be affected.

The appellant said that she told the second respondent that she would have an abortion if the Rubella was going to have an adverse effect on her baby.  Correspondence subsequently exchanged shows that there was a dispute concerning details of the advice given to the appellant by the respondents.  The respondents denied having told the appellant that her baby was not at risk.  They contend that the appellant indicated that she was going to have her pregnancy terminated. 

The child was born on 17 May 1984.  She was a girl and she now has quite severe disabilities claimed to result from the infection, to which I have referred.  The appellant consulted her solicitors in the second half of 1984.  There was correspondence exchanged in that half of that year.  There were allegations of negligence made, which were denied by the respondents.  Some further letters were sent by the appellant's solicitors in 1985, up to July of that year.

In May of 1987, that is over nine years ago, the writ was issued on behalf of the appellant.  The writ made a claim on her own behalf and as next friend of her newly born child.  It claimed damages for negligence.  It was not, however, served for another year, that is, not until 11 May 1988.  The respondents entered an appearance promptly on 17 May of that year.

No statement of claim was ever delivered, but a draft of such a document was disclosed to the Judge below.  It referred to claims for handicaps affecting the child, resulting in expense for the appellant, for care and treatment and referring also to loss claimed to be due to the fact that the pregnancy had not been terminated.  In the hearing below, the claim for damages on behalf of the infant was abandoned and the claim was contracted to one for the appellant only, referring in that connection to the loss of a chance to have an abortion in September and October of 1983.

There was some debate also whether the action was commenced out of time, but the Judge did not feel the need to decide that point precisely.  To continue with the narrative of events there was then no communication between the solicitors between July of 1985 and January of 1984, that is for about eight and half years.

In January 1984 a notice of intention to proceed was given and some letters were exchanged, but leave was not sought until August of the following year, that is a further one and a half years later.  The respondents had notified that they would resist the application for leave.

The appellant's solicitors alleged that the delay was due to the hopes that were held that treatment would improve the level of the child's health and remedy, to some extent, the extent of the defects from which she suffered.  That is, the concern pointed to explaining the delay seemed to be related to the need which was thought to exist to quantify the loss.

The respondents had made clinical notes of the examinations taken in 1983, but their assertion amounted to the claim of significant difficulty of recollection of the full details of that conversation in which advice was alleged to have been given to the appellant.  The claim, of course, for the appellant was that advice had been negligently given to her.

The original of those notes was lost, but a copy was available.  It has become accepted that a satisfactory explanation for delay is not a condition precedent to obtain a grant of leave to proceed under Order 90 rule 9, but delay and the extent of any explanation offered for it are, of course, part of the relevant circumstances.  Prejudice to defendants is also amongst the relevant factors.

This is a case where the essential basis of claim resided in the details of conversations in which advice was, or may have been conveyed to the appellant.  The Judge proceeded on the basis that the details of the conversations were critical in the circumstances and the respondents were disadvantaged by lack of full recollection and the extent of their dependence on abridged notes of what had been said in the course of the consultation.

It seems reasonable to adopt this perspective, at least in a broad sense, notwithstanding the criticisms of some details which were advanced pointing to the way in which the Judge expressed that particular viewpoint.  The essential validity of the core proposition does not seem, for present purposes, to be affected by those criticisms made against it. 

It is not shown that the Judge misled himself in the conclusion at which he arrived.  In this case there has been very extensive delay and the attempts being made to support it are essentially only on the basis that more precise quantification of the damage sought was the principal reason for the delay.

It cannot be accepted that in cases where damages for personal injury are claimed, plaintiffs these days can assert a right to impose their own timetables to justify the rate at which they condescend to progress with their actions.

In other words, plaintiffs are not entitled to assert that Order 90 rule 9 can be brushed aside, or that the requirement of leave can be treated only as a formality.  They have the onus of showing that an order should be made. 

Order 90 rule 9 imposes a real discretion requiring judicial consideration of all relevant circumstances before an entitlement to an order can be secured.  Here, there was a sufficient basis for the Judge's finding of prejudice to the respondents.  In any action precise determination would be called for in the area where the respondents had an impaired recollection and this is in circumstances where the appellant had inordinately and unreasonably delayed.

It is not possible, in my view, to say that the discretion was wrongly exercised or that the result of refusal is one which is open to legitimate criticism.  It cannot be said in short that the Judge's decision below was wrong.  I would dismiss the appeal.

DAVIES J:  I agree.  I would only wish to add something on the question of prejudice because it is arguable that the learned primary Judge may have, to some extent, overstated this. 

The first point I would make is that unlike the appellant the respondents would be unlikely to have recalled the events as time went by with great clarity.  They were not events of critical importance in their lives.

Notes are likely to have been merely that, that is notes.  It is true that the second respondent did not swear as to his recollection, and the first respondent's affidavit is, in a number of respects, unsatisfactory.  But the onus being on the appellant, the learned primary Judge was, in my view, entitled to infer that the recollection of both respondents would have been impaired substantially by the long delay, more than 12 years after the birth of the appellant's child.

The second question with respect to prejudice to which I should refer is, as Mr Williams has pointed out, the loss of opportunity to the respondents to obtain prompt statements from other possible witnesses and he mentioned the doctor's nurse or nurses, receptionist, or receptionists, and possibly friends or neighbours of the appellant.  I agreed with the reasons of the Chief Justice and with the order which he proposes.

de JERSEY J:  I also agree that the appeal should be dismissed for the reasons given by the Chief Justice.  I wish to mention one other matter.  Mr Douglas submitted for the appellant that it was significant that only one of the defendants swore an affidavit opposing the application.  That deponent referred to the prejudice likely to be suffered if the action progressed and claimed it as prejudice both to himself and to his partner, the other defendant.

The respondents' suggested reason why only one defendant swore an affidavit is that he was the defendant with whom the plaintiff had the apparently critical conversation on 10 October 1983 referred to in paragraph 14 of the plaintiff's draft statement of claim.

In his affidavit that defendant gave a version of that consultation in brief form.  There is, therefore, an apparent reason why the swearing of the affidavit was left to that defendant and one could reasonably infer that there was nothing further the other defendant could have added. 

It must be remembered in the end that it fell to the plaintiff not the defendants to show why the action should have been allowed to proceed.

...

THE CHIEF JUSTICE:  The respondents are to have the costs of the appeal.

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