Huebel v Epworth Foundation (trading as Epworth Hospital)

[2003] VSC 507

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6054 of 2003

MAUREEN ANN HUEBEL	Appellant
v
THE EPWORTH FOUNDATION (trading as EPWORTH HOSPITAL) AND ANOTHER	Respondents

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2003
DATE OF JUDGMENT:	28 October 2003
CASE MAY BE CITED AS:	Huebel v Epworth
MEDIUM NEUTRAL CITATION:	[2003] VSC 507

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Appeal - refusal to extend time to issue proceedings - question of law - s.23A Limitation of Actions Act 1958 - s.109 Magistrates' Court Act 1989

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D.G. Brookes	Campbell McAuley
For the Respondents	Mr A. Clements	Phillips Fox

HIS HONOUR:

1. On 30 July 2002 the plaintiff/appellant, Maureen Huebel, issued proceedings in the Magistrates' Court at Melbourne by which she purported to make a claim for damages for negligence arising out of medical treatment administered to her on or about 29 February 1996.  The initiating document, in terms, claims damages against the Epworth Foundation trading as Epworth Hospital and Dr S. Dabb an anaesthetist.

1. The particulars of the claim, which are somewhat unusual, allege medical treatment at Epworth Hospital by Dr Dabb on 29 February 1996, which treatment included the administration of a drug called Toradol.  The essential claim in negligence brought by the plaintiff is that the administration of Toradol in the circumstances in which it was administered was negligent, and that as a result of that negligence she suffered injury consisting principally of an acute post traumatic stress disorder which had various consequences.

1. The proceeding was issued by a solicitor, one Carole Hildebrand who gave as her professional address 568 Brown Road, Officer. The response by the defendants to the issue of that proceeding was, not surprisingly, defences based upon s.5 of the Limitation of Actions Act 1958 which precludes the bringing of a claim for personal injuries caused by negligence more than six years after the cause of action arose.

1. There was also an assertion by each of the defendants that if the claim was put in the alternative as a claim which was saved by s.5(1A) of that Act then the preconditions for the operation of that section did not exist: see Mazzeo v. Caleandro, Guastalegname & Company (2001) 3 VR 172.

1. In response to the defence of the Limitation of Actions Act, Mrs Huebel issued an application seeking relief from the Act pursuant to s.23A, which application was heard and determined by the Melbourne Magistrates' Court on 2 May 2003. Section 23A has existed in the Act since 1972 in different forms; the current form being the relevant form for the purposes of this application.

1. The decision of the Magistrate was that the plaintiff's claim to relief under s.23A should be dismissed. He delivered written reasons in respect of that decision.

1. The plaintiff has appealed to this Court under s.109 of the Magistrates' Court Act1989 which permits an appeal from a final decision of a magistrate, such appeal being limited to a question or questions of law.  In accordance with the usual practice, a question of law was isolated by a Master of this Court by order of 23 June of this year which appears by the Master's order in the following terms:

"Did the learned Magistrate err in the exercise of his discretion in holding inter alia that the delay, 'although not large, was significant for what appears to be a modest claim' particularly having regard to his finding that:-

(a)the actions of the Plaintiff's former Solicitors may explain the inactivity in 2002; and

(b)the likelihood of any successful claim against these Solicitors is strong?"

1. Mr Brookes of counsel who appeared for the plaintiff in this Court argued essentially two points.  They were that the Magistrate erred in making a finding which is set out at the bottom of p.4 of his reasons in the sentence:  "It is not a large delay but it is a significant period of time for what appears to be a modest claim." and that that error led to an error in respect of the exercise of his discretion such that it amounted to an error of law.

1. The second matter that Mr Brookes argued was that the Magistrate took into account the fact that he considered that the plaintiff had a good claim against her solicitor and that the damages she would recover from her solicitor would probably approximate to those which she could have recovered against the original wrongdoer.  Again Mr Brookes argued that that finding led to a miscarriage of the Magistrate's discretion.

1. Mr Brookes cited, as did Mr Clements for the defendants/respondents, the extremely well known dictum of Kitto, J  in Australian Coal and Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 in which His Honour set out the principles concerning appeals against discretionary judgments. It must be remembered that the appeal in this case is not only against a discretionary judgment but is limited to an error of law. Kitto, J said:

"the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.  Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellant court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499 at pp. 504, 505."

1. As I said, that decision must be read in light of the fact that this appeal is confined to a question of law. It is also important to realise that the risk of non-persuasion in a case such as this rests squarely on the plaintiff. Thus it can be seen that it is a matter of some difficulty to establish the necessary basis to have a magistrate's decision dismissing an application brought pursuant to s.23A quashed. I refer to a passage from Poricanin v. Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 424 in the joint judgment of their Honours Hope and Glass JJ, to the following effect:

"The appeal to this Court from the Commission is on questions of law only: s.37(4)(a).  There is no appeal on questions of fact.  The consequences that flow from the limited nature of such an appeal were discussed by Jordan CJ in McPhee v. S. Bennett Ltd (1934) 8 WCR 372. The learned Chief Justice there said: 'The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at pages 110 and 111). But if there is evidence of the fact the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law unless, of course, there is some law which provides that the particular evidence when given is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all or some or none of it."

1. That decision, which was followed in 1985 in a case called Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 has also been referred to and approved in other courts. Azzopardi stands for the proposition that a ground of appeal (in a worker's compensation case) that there was no evidence that or it was not open to find that the applicant was not injured, constitutes an attempt to mask the burden of proof to which the applicant is subjected by the use of a double negative.  It is merely a futile attempt to convert an unappealable question of fact into an appealable question of law by inverting the onus of proof.

1. Care must be taken in cases such as the present not to fall into the trap of inverting the onus of proof.  I should say that Azzopardi has been referred to as being probably correct by the Chief Justice of the High Court in refusing a special leave application in Edelsten v. Ward (No.1) (1988) 63 ALJR 345 and has been cited by the Court of Appeal of this State in Boyle (1996) 87 A Crim R 539 per Callaway JA at 546 and in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 91 per Phillips JA citing Mildren J in Tracy Village Sports and Social Club v Walker (1992} 111 FLR 32 at 37-38.

1. The first of the Magistrate's findings attacked by Mr Brookes is that which appears at the bottom of page 4 of his reasons to the effect that although the delay by the plaintiff in issuing her application was not great it was offset by what appears to be a modest claim.  That finding is a finding of fact.  Not only is it a finding of fact but the Magistrate gives a reason for it.  In a footnote on page 5 he says that his finding as to her claim is based on his own observation of the plaintiff while giving evidence, the fact that she was treated for it for only six months, as well as the fact that there was no other evidence before him of the plaintiff's disability and its duration.  In that respect the Magistrate was entitled to draw an adverse inference against the plaintiff of a Jones v Dunkel[1] type, there being no evidence put before him as to the severity of the plaintiff's injury, the duration of her disability or the treatment she received in respect of it.  The only material put before him was, it would appear, in two documents in which the plaintiff purported to quantify her claim.  One of them which is undated appears under a heading "Just People" and quantifies a claim of $16,000 odd.  The other, dated 22 July 1996, quantifies the claim at $23,000.  It appears to be an annexure to a letter to the second defendant.

   [1](1959) 101 CLR 298

1. It was entirely open to the Magistrate to disregard those matters in forming the view that he did that the plaintiff's claim was a modest one.  By claim I interpret him to mean that which the plaintiff would ultimately achieve, not that which the plaintiff actually claimed.  In other words he was making an assessment of the ultimate strength of the plaintiff's claim on the issue of damages.  That was entirely within his province.

1. Accordingly there is nothing in the point that the Magistrate was wrong in finding that the plaintiff's claim was a modest one and in putting that against the relatively short lengths of time beyond the expired limitation period the proceeding was issued.

1. The second matter that Mr Brookes argued was that the Magistrate inappropriately took into account the fact that the plaintiff had a claim against her solicitor and that such claim had a particular strength.  This part of the Magistrate's decision appears in two places.  The first of them is at page 4 where he refers to a passage of Buchanan, JA in Tsiadis v. Patterson [2001] 4 VR 114 and then says:

"In applying these factors in this case I will make the following observations.  First, in this case, the retainer was admitted into evidence and the solicitor gave evidence.  Although the solicitor's case was not presented (as she was a witness rather than a party) it seems to me that the plaintiff would have no difficulty in establishing the solicitor's negligence in the handling of her claim.  Secondly, in this case, the damages for the loss of a chance would probably approximate those which the plaintiff could have recovered against the original wrongdoer.  This case is the same as the first situation postulated by Lord Evershed, MR in Kitchen v Royal Airforce Association [1958] 2 All ER 241 at 251. Thirdly, I do not consider that a proceeding against her former solicitor would be more complex and expensive than the original claim for the issue of the solicitor's liability is unlikely to be contested. Fourthly, even though one cannot be certain that the plaintiff would suffer no prejudice by being forced to bring an action against her former solicitor, the likelihood of prejudice in this case is low".

1. The second point at which the Magistrate refers to the same topic and comes back to it is on the last page of his judgment, page 5, in these terms: 

"This is one of those cases where the existence of a cause of action against an applicant's defaulting solicitor is an important factor in deciding this application.  Assuming the plaintiff had a valid cause of action against the defendants, any claim against her solicitor is unlikely to be significantly more complex than her present claim. On the basis of the material before me her likelihood of success is strong and the assessment of her damages would approximate those available under this claim".

1. I should say that in respect of the passage I first read, the Magistrate had a footnote against the second of his two reasons for regarding the claim against the solicitor as significant.  The footnote was in these terms: 

"I do not know whether the plaintiff's claim has any merit for the issue was not canvassed. Generally, the issue is irrelevant under Section 23A- Bell v. SPC [1988] VR 123 at 126".

1. The Magistrate is undoubtedly correct as a matter of law as to that assertion.

1. The matters which the Magistrate has taken into account are all, in my opinion, questions of fact.  The retainer by which the plaintiff retained Ms Hildebrand is in evidence.  It is a document which consists of a letter dated 23 May 1998, obviously drawn by Ms Hildebrand but signed by the plaintiff.  It sets out (in a somewhat curious form) the basis upon which Ms Hildebrand was to perform certain work for the plaintiff.  The Magistrate was entitled, on the basis of that retainer, to infer the duty which the solicitor would have owed to the plaintiff and further draw the inference that the plaintiff would have no difficulty in establishing the solicitor's negligence in the handling of her claim.

1. If he is wrong about that, he is wrong as a matter of fact, not as a matter of law.  No redress lies in this Court.  However, I should say it would appear on the evidence that he is probably correct.

1. The second occasion on which the Magistrate makes a comment on the plaintiff's potential claim against the solicitor is that the damages for the loss of a chance which the plaintiff would achieve if she sued her solicitor successfully would probably approximate those which she could have recovered against the original wrongdoer. That statement on page 4 of the Magistrate's reasons is to be read in light of what he said on page 5; that is that it assumes the plaintiff had a valid cause of action against the defendants. Such valid cause of action the plaintiff cannot gainsay. She brings her application under s.23A on the basis that she has a valid cause of action against the defendants. She cannot argue that the Magistrate was not entitled to proceed on that basis. There was no evidence put before the Court as to the strength of the plaintiff's claim, as the Magistrate has pointed out, and he was entitled to assume that that cause of action against the defendants was a valid one. On the basis of that valid assumption he was entitled to draw the inference that her damages for the loss of a chance against the solicitor would probably be approximately those she would have recovered had she been successful in a claim against the defendants on this application. In any event his doing so was an exercise in fact finding and, accordingly, not appealable.

1. The third matter that the Magistrate considered relevant is that on his assessment a proceeding against the plaintiff's former solicitor would not be more complex and expensive than would litigating the original claim.  That is a matter which also raises only a question of fact upon which the Magistrate was probably correct anyway.  An action against a solicitor on a written retainer in the circumstances of this case where the solicitor permitted, indeed encouraged, the plaintiff to issue a proceeding six months out of time would be extremely difficult for the solicitor to defend. The fact that, on the evidence, she had told the plaintiff the limitation period was six years at some earlier time would be merely an evidentiary or forensic difficulty the plaintiff may be able to overcome.  But in any event, whether I am correct about that or not, the Magistrate was entitled to form the view that he did.  His assessment that the plaintiff would suffer no prejudice by being forced to bring an action against her former solicitor, or that the likelihood of that prejudice is low, is also an assessment that the law in this case commits to the Magistrate and which is unreviewable in this Court.

1. In all the circumstances there is no error of law demonstrated in the Magistrate's decision and the appeal will be dismissed.

1. (discussion regarding costs)

1. I order that the appellant pay the respondents' costs of the appeal to be taxed.

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