Hile v Sullivan
[2004] QDC 211
•16 July 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
Hile v Sullivan [2004] QDC 211
PARTIES:
NATASHA HILE
Applicant/Plaintiff
v
PETER SULLIVAN
Respondent/Defendant
FILE NO/S:
2429/2002
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
16 July 2004
DELIVERED AT:
Brisbane
HEARING DATE:
18 May 2004
JUDGE:
Shanahan DCJ
ORDER:
1. The period of limitation in respect of the applicant’s Claim BD2429 of 2002, as particularised in the applicant’s Statement of Claim, be extended for one year, to 6 May 2003, and
2. The application for summary judgment by the defendant is refused.
CATCHWORDS:
STATUTORY LIMITATION PERIOD – EXTENSION OF TIME – PREJUDICE – Where the respondent, a obstetrician and gynaecologist, performed a hysterectomy on the applicant – Where the applicant believes she was diagnosed and treated in relation to polycystic ovaries – Where the respondent allegedly advised her that she required a hysterectomy and would only be “putting off the inevitable” if she refused – Where the applicant alleges that she told the respondent of a desire to have further children – Where no discussion of alternative methods of treatment allegedly occurred – Where the operation was performed a number of days later – Where the applicant was put on enquiry about the appropriateness of the treatment when she read a magazine article some years later – Where there was medical evidence to suggest that the treatment was negligent in the circumstances – Prejudice suffered by the respondent by reason of the delay – Where a potential witness could not be identified – Where the respondent had since relocated overseas.
Cases cited:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Statutes cited:
Limitation of Actions Act 1974 (Qld): rr 31, 31(2)
COUNSEL:
Mr M E Eliadis for the applicant
Mr G W Diehm for the respondent
SOLICITORS:
Shine Roche McGowan for the applicant
Flower & Hart for the respondent
An application was brought by the first defendant for summary judgment on the basis that the action was commenced outside the applicable limitation period. At the hearing date the plaintiff was permitted to make application that the limitation period be extended. These reasons for judgment therefore relate to the application brought by the plaintiff (“the applicant”) under s 31(2) of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period operative on her action against the first defendant (“the respondent”). The applicant’s substantive action against the respondent has been framed in terms of negligence, or in the alternative, breach of contract. The action against the second defendant has been discontinued.
Background facts
The applicant, Ms Natasha Hile, was born on 9 March 1973. The respondent, Dr Peter Sullivan, is an obstetrician and gynaecologist who, at the relevant time, worked in the Toowoomba region.
It is the applicant’s case that on 14 February 1995, when she was 21 years of age, the respondent performed a vaginal hysterectomy on her. Twelve days prior to this operation, on 2 February 1995, the applicant says that she had her first consultation with the respondent. On her account, he had advised her at that time that it would be necessary for her to undergo a hysterectomy in order to treat an alleged diagnosis of polycystic ovaries, and that she would be just “putting off the inevitable” if she did not. She claims that she told the respondent that she and her husband wanted to have further children. She further claims that alternative treatment options were not discussed with her. There were no intermediate consultations prior to the operation being performed.
Some time in late 2001, after reading a magazine article, the applicant discovered that a hysterectomy was not appropriate treatment in cases of polycystic ovaries. She consulted solicitors and a report dated 6 May 2002 was obtained from a Dr Robert Lyneham. That report confirms a possible case of negligence. A Claim and Statement of Claim were filed in the District Court at Brisbane on 14 June 2002.
The respondent accepts, in part, that the applicant was referred to him on a suspicion of her suffering polycystic ovarian disease (paragraph 5 Defence). The respondent asserts however that the clinical examination on 2 February 1995 was consistent with a diagnosis of adenomyosis – a condition which he submits could properly be treated by a hysterectomy. The applicant does not accept that it was this diagnosis which was the basis of the operation, and indeed does not accept that this diagnosis was open. Furthermore, it is the applicant’s case that even if this were the diagnosis, the treatment was still negligent in the circumstances.
The resolution of the Claim will depend, to a large extent, on findings of fact as to what occurred in the consultation on 2 February 1995 and medical evidence as to the appropriate treatment for whatever condition the applicant was suffering.
An additional issue is whether the applicant, on a date between the first consultation and the operation, consulted a social worker and whether she discussed with that person the advice that she had received from the respondent. The identity of the social worker cannot be ascertained by the parties.
Issues
The primary issue before the court is of course whether the applicant should be granted an extension of time to pursue her claim.
Section 31(2) of the Act allows the court to exercise its discretion to extend a limitation period so that it expires twelve months after the applicant becomes aware of a “material fact of a decisive character” where certain conditions are met, namely:
(a) that the material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action, and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.
Therefore, the determination of the present application concerns an evaluation of these two issues. Although the respondent does not concede any issues, it is clear that the real issue to be considered in this application is whether the respondent would suffer any prejudice if an order extending time was made.
Hearing of the application
The applicant, Ms Natasha Hile, gave evidence on this application. She was cross-examined by the respondent. Much of her evidence concerned the possible identity of the social worker and the timing of her consultations with that social worker. The applicant claimed that the social worker’s name was “Madonna” and that she was based at the Queensland Mental Health Service unit at Warwick. The applicant’s evidence was that she had not consulted the social worker concerning the option of a hysterectomy but had been consulting that person over a period of time in relation to other issues that the applicant faced. Other material, principally notes from the applicant’s general practitioner, indicated that the applicant had told that doctor that she had discussed the hysterectomy with the social worker before the operation. That material was not tested on this application.
Counsel for the respondent asked the applicant why this information had not been previously disclosed. The applicant’s evidence was that she had disclosed the first name and the Warwick location to her solicitors and that she thought that the hospital would provide the records.
Applicant’s submissions
In support of the application, the applicant particularised a number of facts which she alleged amounted to evidence of negligence on the part of the respondent. In particular, the applicant pointed to the very small time frame between the initial consultation and the resulting hysterectomy. She alleges that the respondent did not make any other recommendations or suggestions in respect of alternative treatment options.
The applicant contends that the evidence of her expert witness, Dr Lyneham, indicates that the standard of care exercised by the respondent fell below the standard to be expected of a reasonably qualified gynaecologist and obstetrician, and that the hysterectomy was not the proper treatment in the circumstances.
The applicant alleges that she had never heard of the term “adenomyosis” prior to being informed of the respondent’s Defence. Dr Lyneham was also of the opinion that there was no evidence of adenomyosis on ultrasound. Further, Dr Lyneham was of the opinion that a complaint of chronic pelvic pain aggravated by coitus does not result in the need for a hysterectomy even in the presence of a tender uterus. On this basis, the applicant contends that even if the “adenomyosis” diagnosis was made, the performance of a hysterectomy would still be negligent.
It is clear that there is evidence which, if accepted, establishes a right of action.
In relation to a material fact of a decisive character not being within her knowledge, the applicant submits that it was not until she read the magazine article in 2001 that she began to question whether the treatment was appropriate in the circumstances. The applicant submits that upon reading the article in the magazine she immediately took steps to investigate the appropriateness of the treatment and commissioned a report from Dr Lyneham to confirm the position.
In relation to any prejudice that might be suffered by the respondent, the applicant submits that judging from the content of the Defence filed, the respondent clearly had access to his own records and correspondence concerning the consultation and operation. Other relevant records of the applicant’s general practitioner, the Toowoomba Hospital (where the operation was conducted) and the Royal Newcastle Hospital (where the subsequent consultations and treatment occurred) are also still in existence and available. There would be no real or substantial prejudice to the respondent from the delay. It was contended that the respondent must have had some recollection of the events in question, aided by his records, in order to be in a position to give such detailed instructions to his solicitors.
The applicant submits that it is not of particular relevance that the respondent now resides in the United Kingdom.
The applicant further submits that the difficulty in locating the social worker is not enough to establish that the respondent had been unduly prejudiced. The prejudice is only one of possibility. (Other possibilities would be that the applicant had not in fact consulted with the social worker in the relevant period, or that, if she did, the consultation did not touch on the issues at hand or would not be substantially probative of them.)
As to the respondent’s contention that there is prejudice occasioned by the respondent not now being in possession of certain documentation which he maintains he gave to the applicant at the initial consultation, the applicant submits that she denies ever receiving such literature from the respondent and that this point is obviously in dispute.
Respondent’s submissions
The respondent placed great weight on the High Court authority of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, specifically pp 548-549 per Toohey and Gummow JJ and pp 551, 554-555 per McHugh J.
In that case the High Court considered a very similar set of facts – it too concerned the performance of a hysterectomy on a young old female patient some days after the initial consultation. The High Court ultimately upheld the decision of the learned judge at first instance in refusing an extension of time. In considering the matter, the High Court said that, in the majority of cases, the predominant issue will be whether or not it would be possible to hold a fair trial. The High Court made it clear that the substantive burden clearly rests on the applicant to demonstrate that the court should exercise its discretion in her favour.
In terms of any prejudice in the present case, the respondent’s principal submission is that a material witness cannot be identified or located. That witness is the social worker who was allegedly consulted by the applicant prior to the operation being performed. The respondent contends that this witness might be able to provide evidence as to the applicant’s state of mind prior to the operation being performed and whether the applicant was being rushed into the procedure. That witness might also be able to indicate what the applicant had said concerning the initial consultation and what she had been told by the respondent.
Despite enquiries being made of the Toowoomba Hospital and the Warwick Hospital (where the applicant thinks she saw the social worker) no records could be located to confirm whether the consultation took place, or even the identity of the witness.
The respondent contends that there is evidence that the applicant told her general practitioner on 19 May 1995 that she had consulted a social worker after her first consultation with the respondent and prior to the operation being performed.
Further the respondent submits that, at the consultation on 2 February 1995, he gave the applicant some documents in relation to her diagnosed condition and the proposed operation. Copies of those documents are no longer held by the respondent, having closed his practice in Australia some time ago.
Finally on the issue of prejudice, the respondent submits that he now resides in the United Kingdom and it would be necessary for him to travel to Australia so that he could give proper instructions.
Discussion
The principal issue in this case is the extent of any prejudice caused by delay and whether it impacts on the ability of the respondent to have a fair trial.
I am satisfied on the material before me that the applicant meets the two preconditions under s 31(2). I accept that the applicant was not put on enquiry about the appropriateness of the treatment she received until after she read the magazine article and, although that article cannot be found, the actions that she undertook subsequently go some way to establishing that it was about this time when a “material fact of a decisive character” came within her knowledge. This aspect has not been challenged by the respondent, nor has the respondent really challenged the contention that there is evidence to establish the right of action.
For the purposes of this application, I am satisfied that the date the applicant became aware of the “material fact of a decisive character” was the date of Dr Lyneham’s report, being 6 May 2002. It was this report which confirmed specifically that the applicant had a cause of action. That is not to say, however, that in all cases it will be the date of an expert’s report that will be the decisive date. But in this case, given the difficulty in locating the magazine article and the diligence with which the applicant has proceeded in investigating and advancing her case (including the filing of her Claim and Statement of Claim), if I am to allow the extension then it should run from the date of the report. This will of course mean that the applicant’s action will have been filed within time.
Principally the instant case concerns a twenty one year old woman who, on the advice she received from the respondent, underwent a very serious procedure a number of days after the first and only consultation. It is her case that she was not told of alternative treatments and she had told the respondent that she had wanted to have further children.
The respondent is an active participant of the proceedings in that he has been able to give detailed instructions concerning the applicant, the consultation, the diagnosis, the operation and relevant correspondence. He has access to his notes and correspondence, as well as to the hospital records, the records of the applicant’s general practitioner and arguably his own independent recollection of the events. Whilst he must travel from the United Kingdom to give instructions to his solicitors, I am not persuaded that this is particularly significant in terms of what I have to consider on this application. Parties and witnesses regularly travel from international locations to attend court, and whilst that might be expensive and inconvenient for them, it is not something peculiar to cases of delay. It does not in any way impact on the likelihood of a fair trial.
In relation to the identity of the social worker, again, I am not persuaded that this is enough to cause the applicant to fail. While it is possible that the applicant did consult a social worker concerning the operation, what assistance that witness would be in relation the matter is somewhat speculative. If she simply corroborated the applicant then she would not be called as a witness in any event. If she contradicted the applicant’s version, then the respondent would still face the difficulty of the independent medical evidence and the short time period between the diagnosis and treatment.
Even on the hypothesis that the applicant had told the social worker that she had wanted a hysterectomy (perhaps notwithstanding contrary advice from the respondent) and that she understood the implications and agreed to them, then that would do little to answer the fact that a hysterectomy was performed in circumstances where, on one view of the medical evidence put before me, it was inappropriate for such treatment to be administered in any event.
There is some dispute as to whether the applicant disclosed the first name of the social worker to her solicitors so that it could be conveyed to the respondent’s solicitors at an appropriate time. The name had been disclosed at the date of the application. Whether further inquiries can disclose the identity of that person is a moot point. It seems to me that there is some genuine confusion as to when and where the applicant consulted the social worker and for what purpose. However, for the reasons I have already stated, I do not think that should be fatal to the application.
As McHugh J said in Brisbane South Regional Health Authority v Taylor at p 555:
“To subject a respondent once again to a potential liability that has expired may often be a lesser evil than to deprive the applicant of the right to reinstate the lost action. This will often be the case where the applicant is without fault and no actual prejudice to the respondent is readily apparent. But the justice of an applicant’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a respondent who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”
In this matter I find that the respondent is able to fairly defend himself. Whilst, as in any case where there has been delay, both parties will suffer some prejudice, the prejudice to the respondent in this case is not so great as to warrant refusing the application.
The application is allowed. My orders are:
The period of limitation in respect of the applicant’s Claim BD2429 of 2002, as particularised in the applicant’s Statement of Claim, be extended for one year, to 6 May 2003, and 1.
The application for summary judgment by the defendant is refused.2.
I will hear the parties as to the costs of both applications.
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