Jacob Riely McLennan by his next friend Yvonne Joyce McLennan v McCALLUM - [2003] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: JACOB RIELY McLENNAN by his next friend YVONNE JOYCE McLENNAN & ANOR -v- McCALLUM & ANOR [2003] WADC 93

CORAM: WISBEY DCJ

HEARD: 31 MARCH 2003

DELIVERED : 24 APRIL 2003

FILE NO/S: CIVO 250 of 2002

BETWEEN: JACOB RIELY McLENNAN by his next friend YVONNE JOYCE McLENNAN
First Plaintiff
YVONNE JOYCE McLENNAN
Second Plaintiff
AND
KEITH ARNOLD McCALLUM
First Defendant
MINISTER FOR HEALTH
Second Defendant

Catchwords:

Limitation of actions - Legislation - Failure to commence action within prescribed time - First plaintiff a child born on or about date of accrual of cause of action - Incapacity providing reasonable cause for first plaintiff - Lack of understanding providing reasonable cause for second plaintiff - Just to extend time

Legislation:

Limitation Act 1935 s 47A

Result:

Leave to commence proceedings subject to conditions

Representation:

Counsel:

First Plaintiff                :     Mr M H Zilko SC
Second Plaintiff            :     Mr M H Zilko SC
First Defendant             :     Mr Thomson
Second Defendant         :     Ms K E McDonald

Solicitors:

First Plaintiff                :     Ilberys
Second Plaintiff            :     Ilberys
First Defendant             :     Clayton Utz
Second Defendant         :     Crown Solicitor for the State of Western Australia

Case(s) referred to in judgment(s):

Alcoa of Australia Ltd v State Energy Commission (WA) (1995) 17 WAR 112
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Matheson v Commissioner of Main Road (2001) 25 WAR 269
Quinlivan v Portland Harbour Trust [1963] VR 25
State Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

Case(s) also cited:

Australian National Airlines Commission v Newman (1987) 162 CLR 466
Bingham v England (1996) 17 WAR 226
Blum v Motor Vehicle Insurance Trust [1966] WAR 121
Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
Gray v Motor Accident Commission (1998) 196 CLR 1
Higgins v NW Metropolitan Regional Hospital Board [1954] 1 All ER 414
Holland v King Edward Memorial Hospital (1995) 14 SR (WA) 305
Holland v Metropolitan Health Service Board [2001] WASCA 155
Hughes v Minister for Health in his capacity as Board of East Pilbara Health Service [1999] WASCA 131
Jacobs v London County Council (1935) 1 KB 67
Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983
Nicholls v Minister for Health (1992) 8 SR (WA) 310
Posner v Roberts [2986] WAR 1
Razzel v Snowball [1954] 3 All ER 429
Scott v State of Western Australia (1994) 11 WAR 382
Smith v ANL (1998) 20 WAR 219
Thorpe v Shire of Coolgardie (1995) 14 SR (WA) 133

WISBEY DCJ: By originating summons filed 17 October 2002 the first plaintiff Jacob Riely McLennan an infant by his next friend Yvonne Joyce McLennan, and the second plaintiff, Yvonne Joyce McLennan, seek leave pursuant to s 47A of the Limitation Act 1935 to commence proceedings for damages for personal injury "arising out of an incident which occurred between 1 April 1997 and 15 May 1997." The relevant period is in fact 7 May 1997 to 15 May 1997.
The first plaintiff, being an infant is required by the Rules of the Supreme Court to be represented in any proceedings by a next friend, O 70 r 2(1) relevantly providing that a person under a disability (eg an infant) may not bring, or make a claim in, any proceedings except by his next friend.
Section 47A of the Limitation Act provides that no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless:
(a)the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued.
Subsection (3)(a) and (b) provide that notwithstanding the foregoing provisions, application may be made to the Court for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice has been given, and where the Court considers that the failure to give the required notice or the delay in bringing the action 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 may impose.
Subsection (3)(c) provides that before an application for leave is made to the Court, the party intending to make the application shall give notice in writing of the proposed application and the grounds upon which it is to be made to the prospective defendant, at least 14 days before the application is made. That requirement is mandatory.
In an affidavit sworn 15 November 2002 Kim Morys Bainbridge, the Victorian solicitor for the second plaintiff, deposed to the fact that on 3 October 2002 he caused inter alia a copy of the proposed originating summons and supporting affidavit to be forwarded by facsimile to the solicitors for the firstnamed defendant, and to the Crown Solicitor's Office in Perth. That in my view constitutes appropriate notice.
In an affidavit sworn the 4 October 2002 and filed in support of the application for leave the second plaintiff relevantly stated that:
(a)she was born on 9 July 1963;
(b)she gave birth to the first plaintiff at the Kalgoorlie Hospital on 15 May 1997 and being a footling breach birth the first plaintiff sustained significant brain damage. He was placed in intensive care at Princess Margaret Hospital and later at the Kalgoorlie Hospital (the Hospital) for about 5½ weeks post‑delivery. The prognosis at that time was that he would only survive for approximately 12 weeks;
(c)the second plaintiff asserted that she was not monitored from 2130 on 14 May 1997 (the date of her admission to the hospital) until 0315 the following morning. During that time the midwife on duty was a nurse Gilks.
(d)for the following three to four years it was necessary for her to provide 24 hour care to the first plaintiff as well as looking after her other two children and coping with matrimonial difficulties. During this time she returned to live with her family in Swan Hill, Victoria;
(e)no forensic thought was given to the circumstances of the first plaintiff's birth and the conduct of either defendant until medical practitioners attending to him in Victoria mentioned that the defendants may have some legal responsibility, whereupon the second plaintiff consulted a solicitor, Mr Bainbridge of Garden & Green, in January 2002. Mr Bainbridge issued a generally endorsed writ on 31 January 2002, followed by a statement of claim, not appreciating the significance of the provisions of the Limitation Act;
In an affidavit sworn 14 March 2003 the second plaintiff relevantly stated that she became aware of the possibility that the first plaintiff's condition was due to medical negligence in or about September 2001, and it was at that time that she instructed Mr Bainbridge of Garden & Green to investigate a claim for damages on his behalf. Mr Bainbridge subsequently issued a writ and it was not until the filing of a defence by the second defendant in or about July 2002 that the second plaintiff and her advisers became aware of the provisions of s 47A of the Limitation Act 1935. Prior to being admitted to the Hospital for the impending birth she had a consultation with the first defendant on 7 May 1997 at his private consulting rooms and was billed as a private patient and paid for the consultation.
In an affidavit sworn 5 December 2002 Fraser Moss, the Acting Regional Medical Director of the Goldfields and Southeast Coastal Health Region, relevantly stated that:
(a)he was duly authorised to swear the affidavit on behalf of the second defendant;
(b)the second defendant's medical records demonstrated that the second plaintiff was admitted to the Hospital on the evening of 14 May 1997 for induction of labour and that she delivered the first plaintiff at the Hospital at approximately 0458 hours on 15 May 1997;
(c)the first notification the second defendant received of any potential legal proceedings consequent upon the birth, was when it received a letter from Garden & Green dated 31 January 2002 advising that proceedings had been issued out of the Supreme Court Victoria. By letter dated 4 February 2002 Garden & Green forwarded to the Hospital a copy of the writ which contained a general endorsement relevantly reading "between 1 April 1997 and 15 May 1997 the plaintiff suffered severe injury as a consequence of the negligence of the defendants and as a result of the breach of duty which the defendants owed to the plaintiff and/or in breach of contract".
(d)subsequently a statement of claim was served, and a defence dated 9 July 2002 was filed on behalf of the Hospital pleading the failure to comply with the requirements of s 47A of the Limitation Act 1935;
(e)he had been advised by the Department of Health's senior legal adviser Ms Carter that in order to properly defend a claim against it the Hospital would require the evidence of nursing staff, including the registered midwife Noleen Gilks, and registered nurse Jacinta Freeman;
(f)the Hospital records showed that nurse Gilks was on duty on the Hospital's maternity ward between 2100 hours on 14 May 1997 and 0730 hours on 15 May 1997; was the nurse rostered to the second plaintiff during that period; and had made numerous notations in the medical notes in respect of the second plaintiff's care. Although there were no observations recorded by nurse Gilks between 2135 hours on 14 May 1997 and 0315 hours on 15 May 1997, having regard to the hospital system with respect to maternal observations during labour, nurse Gilks would have conducted regular observations during that period. An attempt by the Hospital's legal representatives to contact nurse Gilks in July 2002 obtained a response from her mother that she was too ill to speak to them, and she died in Victoria on 16 July 2002;
(g)the Hospital records demonstrated that nurse Freeman was on duty in the maternity ward between 2100 hours on 14 May 1997 and 0730 hours on 15 May 1997. Consequently she was on duty between 2135 hours on 14 May 1997 and 0315 hours on 15 May 1997 when there were no observations recorded in the medical notes, and she was the author of the notation written in the integrated post progress notes at 0315 hours on 15 May 1997. Having regard to the Hospital's system with respect to maternal observations it was probable that she would have conducted regular observations of the second plaintiff during the aforesaid period. At the relevant time nurse Freeman was carrying out a short term student placement at the Hospital as part of her university studies; was not an employee of the Hospital and was not on its payroll; and enquiries made with the Nurses Board of Western Australia and local hospitals had failed to locate her. There was no one by that name registered with the Nurses Board of Western Australia. It had not been possible to locate her, and there was a suggestion that she might be working in Saudi Arabia;
(h)the Hospital records demonstrated that registered midwife Marie Levinge was on duty at the Hospital's maternity ward between 1300 hours and 2130 hours on 14 May 1997 and between 0700 hours and 1530 hours on 15 May 1997. She had not made any written entries in the medical notes and it was not possible to ascertain whether she had any direct involvement with the care of the second plaintiff. It has not been possible to locate her;
(i)the Hospital records showed that a registered midwife Clare Herlihy worked on the children's ward at the Hospital between 0600 hours and 1100 hours on 15 May 1997 and had made several notations in the first plaintiff's medical notes. Enquiries revealed that she was employed at the hospital as an agency nurse, and it has not been possible to locate her.
In an affidavit sworn on 10 January 2003 the first defendant relevantly stated that:
(a)he is a specialist obstetrician and gynaecologist and practised as such inter alia with public patients at the Hospital;
(b)he saw the second plaintiff on 7 May 1997 upon referral from her general practitioner, Dr Date, as a private patient, but thereafter she was treated as a public patient of the Hospital. In respect of public patients he was paid a set fee for service by the Hospital Board;
(c)he admitted the second plaintiff to the Hospital for induction of labour on 14 May 1997 and delivered the first plaintiff at 0458 hours on 15 May 1997;
(d)he first became aware of potential legal proceedings when he received a letter from Gardner & Green dated 17 January 2002. He was subsequently served with the writ issued out of the Supreme Court Victoria and like the second defendant filed a defence raising s 47A of the Limitation Act 1935;
(e)as with the second plaintiff he considered it necessary in properly presenting his defence to the plaintiff's allegations to adduce oral evidence from nurse Gilks since she was the only person able to depose to what transpired whilst she was managing the second plaintiff;
(f)the first plaintiff was born by flexed breach, not footling breach, and had gross central nervous system dysfunction;
(g)the absence of notes regarding the period from 2130 on 14 May 1997 to 0315 on 15 May 1997 was not untoward in the circumstances in which the second plaintiff had been admitted, there being no need to record any findings until the spontaneous rupture of membranes and the commencement of contractions.
In an affidavit sworn 27 March 2003 the first defendant stated that in May 1997 he had admitting rights at the Hospital and for administration purposes was called a visiting medical practitioner. In respect of treating public patients he was paid a set fee for service per item paid by the Hospital Board in accordance with the West Australian Public Hospital Scheme scale, and he was paid the appropriate fee for the services he performed in relation to the plaintiffs whilst they were at the Hospital.
In an affidavit sworn 5 March 2003 Jane Anne Carter, a senior legal adviser with the Department of Health, stated inter alia that:
(a)at all material times the Hospital was a public hospital;
(b)the first defendant by letter dated 11 September 1991 had applied to the Hospital for admitting rights as a visiting medical officer;
(c)the first defendant was not a member of staff of the Hospital but had admitting rights to the Hospital and initially saw the second plaintiff as a private patient in his rooms, although she was admitted to the Hospital as a public patient;
(d)she had been advised by the Crown Solicitor's Office that the inability to call oral evidence from nurses Gilks and Freeman would result in substantial prejudice to the second defendant and in addition prejudice may flow from the inability to locate nurses Levinge and Herlihy;
(e)the absence of any notes in the Hospital records between 2135 hours on 14 May 1997 and 0315 hours on 15 May 1997 did not indicate that nurse Gilks was not regularly observing the second plaintiff.
In an affidavit sworn 6 March 2003 Deborah Louise Williams, a senior assistant Crown Solicitor having the conduct of the claim on behalf of the second defendant, deposed to the fact that in order to properly defend the claim against the second defendant the evidence of nursing staff and specifically nurses Gilks and Freeman was essential, particularly in regard to the allegations by the second plaintiff that she was not attended by any member of the Hospital nursing staff from 2135 hours on 14 May 1997 to 0315 hours on 15 May 1997. In addition the inability to locate nurses Levinge and Herlihy was likely to be prejudicial.
In an affidavit sworn 27 March 2003, Raelene Joy George, the clinical manager of the maternity ward of the Hospital stated that she had worked at the Hospital since 1969, and in 1997 was one of four clinical nurse/midwifes in the maternity department. She stated that in 1997 it was common practice that 30 minutes after the insertion of protoaglandin gel CTG monitoring would be carried out for 20 minutes. The decision to use CTG monitoring and its frequency depended upon a number of variables, in particular the clinical presentation of the patient. If there was apparent foetal bradycardia it was routine to reposition the patient to alleviate the possibility of cord compression, but that might not be recorded in the patient notes. Nurse/midwifes were not competent to make a decision to administer tocolytic drugs and if a tocolytic drug had been ordered and administered it would be recorded on the Hospital notes.
It is on the above material that I am required to consider the application.

Does s 47A apply to the first defendant?

The first defendant argues that he is covered by the protection afforded by the section. The plaintiffs and the second defendant hold a contrary view, although in the case of the plaintiffs that is inconsistent with the application.
Prima facie the first defendant was at all material times in private practice. He had admitting rights at the Hospital, and it appears that the position between himself and the Hospital was governed by the terms of agreement concerning the provisions of medical services by visiting medical practitioners entered into by the Minister for Health and the West Australian branch of the Australian Medical Association.
Clause 3 of the agreement provides inter alia that:
"Visiting medical practitioners are and will remain independent contractors, but in facing such complex matters as waiting lists, budget allocation and the like, there should be a team approach in which visiting medical practitioners and other senior medical, nursing and allied health staff work with the management of hospitals and health services to achieve the best possible results for patients."
Clause 4.5 provides that:
"A medical practitioner appointed as a visiting medical practitioner shall be an independent contractor and not an employee of the hospital. It is acknowledged by the parties that visiting medical practitioners are responsible for arranging workers' compensation insurance covering themselves and their employees."
Clause 4.7 provides that:
"A medical practitioner shall not be appointed as a visiting medical practitioner and shall not practice within a hospital unless the medical practitioner has taken out and maintains appropriate professional indemnity insurance or professional indemnity cover with a recognised medical defence organisation."
Clause 4.8 provides that:
"Medical practitioners holding appointments as visiting medical practitioners may admit private patients to the hospital and charge fees to those patients for their services."
Having regard to the arrangement aforesaid and the fact that the second plaintiff was prior to her admission to hospital a private patient of the first defendant, I am of the view on the material before me (untested as it is) that the first defendant is not protected by s 47A.
In Alcoa of Australia Ltd v State Energy Commission (WA) (1995) 17 WAR 112 Parker J stated at 129 that the test in deciding whether s 47A was applicable was "whether the authority is exercising for the benefit of the public, a public duty or authority which is not merely an incidental, ie, subsidiary or auxiliary, power. That test was accepted as correct on appeal in State Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131.

On the material before me it is difficult to conclude that the obstetric services being performed by the first defendant were being "done in pursuance or execution or intended execution of any Act, or of any public duty or authority". Having said that it is to be observed that in the draft statement of claim (par 31, subpar 2.1) it is alleged as an alternate plea that the second defendant is vicariously responsible for the negligence of the first defendant who "may be an employee or agent of the second defendant"; and of course it is the first defendant's position that he was at all material times an agent or servant of the second defendant, and entitled to the protection afforded by s 47A. In my view it is not possible to satisfactorily determine this contested issue on the untested affidavits, and for the purpose of this application I propose to proceed on the basis that in the absence of an order each defendant may be protected by the section.

Mistake or any other reasonable cause

The primary question in the resolution of the present controversy is whether the delay by the first and/or second plaintiffs (a delay of approximately five years) was occasioned by mistake or any other reasonable cause.
There is no question of mistake over the greater period as the question of the potential liability of either defendant was not addressed until September 2001, and more particularly after legal advice provided to the second plaintiff in approximately January 2002. The first plaintiff was by reason of age and infirmity unable to form a view one way or the other.
I have no doubt that the first plaintiff's infancy and disability provide reasonable cause for delay on his part; and it is not necessary to go any further than O 70 of the Rules of the Supreme Court which precluded him from bringing or making a claim except by a next friend. He was never in a position to initiate proceedings even had he the capacity to assess the propriety of such a step.
I am further satisfied on the affidavit material that the position of the second plaintiff in not appreciating that there was a potential cause of action until she received legal advice was having regard to her social situation generally "a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay of giving of notice by a reasonable man." See Quinlivan v Portland Harbour Trust [1963] VR 25 at 28. Also Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 and Matheson v Commissioner of Main Road (2001) 25 WAR 269. The short delay that followed the obtaining of legal advice was a result of mistake as to the relevant provision in the legislation.
Being satisfied that a precondition for the exercise of discretion has been established, it remains to consider whether it is just to exercise discretion in favour of the plaintiffs. That necessarily involved a consideration of the prejudice suffered by each of the defendants. It is clear that there must be prejudice to each of the defendants by reason of the inability to take instructions from and call nurse Gilks, and possibly nurse Freeman and others. Prejudice would also flow from the effluxion of time. See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J at 552. That prejudice must be balanced against that flowing to the plaintiffs, particularly the first plaintiff. In the result I am persuaded on all material before me that the justice of the case requires that leave be granted, excluding the right to claim for exemplary and aggravated damages, in respect of which the evidence of nurse Gilks would be of greater importance. In the result the order of the Court shall be:
1.The plaintiffs do have leave to commence an action for damages for personal injury (excluding exemplary and aggravated damages) against the first defendant arising out of advice and medical treatment provided by the first defendant to the plaintiffs during the period 7 May 1997 until 15 May 1997.

2.The plaintiffs have leave to commence an action for damages for personal injury (excluding exemplary and aggravated damages) against the Minister for Health arising out of advice and medical treatment provided to the plaintiffs at the Hospital on 14 and 15 May 1997.