Kayla Walker (BY Her Next Friend Nicole Walker) v Slater and Gordon Ltd
[2017] WASC 186
•5 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KAYLA WALKER (BY HER NEXT FRIEND NICOLE WALKER) -v- SLATER AND GORDON LTD [2017] WASC 186
CORAM: ALLANSON J
HEARD: 30 JUNE 2017
DELIVERED : 5 JULY 2017
FILE NO/S: CIV 2970 of 2016
BETWEEN: KAYLA WALKER (BY HER NEXT FRIEND NICOLE WALKER)
Plaintiff
AND
SLATER AND GORDON LTD
Defendant
Catchwords:
Practice and procedure - Application to determine preliminary issue - Turns on own facts
Legislation:
District Court Rules 2005 (WA), O 44G
Limitation Act 1935 (WA), s 47A
Limitation Act 2005 (WA), s 7
Rules of the Supreme Court 1971 (WA), O 32 r 4
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr J R Johnson
Defendant: Ms M K Joyce
Solicitors:
Plaintiff: Julian Johnson Lawyers
Defendant: Minter Ellison
Case(s) referred to in judgment(s):
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47
Moore v Stockland South Beach Pty Ltd [2011] WASC 337
St Barbara Ltd v Hockley [2013] WASC 283
Woodley v Woodley [2014] WASC 377
ALLANSON J: The plaintiff was born in 2004. Following the plaintiff's birth, she suffered catastrophic brain injury. In 2010, the plaintiff commenced proceedings against the Minister for Health. That action did not proceed. She brings these proceedings by her next friend against Slater & Gordon Limited, which acted for her in the claim against the Minister for Health, alleging that by reason of its breach of contract, or negligence, or both, she lost her cause of action against the Minister.
The parties by agreement seek the preliminary determination of issues set out in a proposed statement dated 10 May 2017:
Background and Agreed Framework
1.The parties seek a preliminary determination of whether the plaintiff's cause of action against the Minister for Health as pleaded in the further re‑amended statement of claim filed 5 May 2017 (Cause of Action) is a cause of action (childbirth) within the meaning of section 7 of the Limitation Act 2005 (WA).
2.This requires the following questions to be answered.
The questions
3.What personal injury/injuries does the plaintiff's Cause of Action for damages relate to, within the meaning of section 7 of the Limitation Act 2005 (WA) (section 7 injury)?
4.Was/were the section 7 injury/injuries (or, if more than one, any of them) incurred:
(a)in the course of the plaintiff's mother giving birth to the plaintiff; or
(b)immediately after, and arising from, the plaintiff's mother giving birth to the plaintiff?
5.is the plaintiff's Cause of Action a cause of action (childbirth) within the meaning of section 7 of the Limitation Act 2005 (WA)?
For reasons which I set out below, I am not satisfied that the questions so formulated are suitable to be determined as a preliminary issue. I would in my discretion not order a trial of the preliminary issue.
The pleaded cases
The plaintiff's claim against the Minister for Health
The plaintiff was born on 30 August 2004.
The plaintiff's mother was admitted to King Edward Memorial Hospital on 8 August 2004, and remained in the hospital up to and after the birth of the plaintiff.
Before the plaintiff was born she was inadvertently infected by viral transmission with the herpes simplex virus (HSV2) from her mother. The plaintiff pleads that the infection or transmission of the virus occurred at least a week before her birth (par 6).
Following the plaintiff's birth, while she remained in hospital, cranial ultrasound scans revealed changes including increased fluid in interhemispheric fissures in her brain. Progressive testing showed increases in her head circumference. The plaintiff displayed other symptoms of illness or infection (pars 7 ‑ 15).
On about 15 September a generalised screen test for foetal viral infectious diseases (including HSV2) was ordered. On 17 September, the plaintiff was tested by lumbar puncture. On 21 September the plaintiff's tests were reported positive for HSV2 (pars 16 ‑ 18).
As a consequence of the infection with HSV2, the plaintiff suffered encephalitis which progressively caused catastrophic brain injury, resulting in severe spastic quadriparetic cerebral palsy and severe developmental delay. The plaintiff pleads (pars 19.1 ‑ 19.4):
19.1.From the time of the plaintiff's infection with HSV2 … such virus caused progressive damage and destruction to cells in the plaintiff's brain …
19.2Some such brain cell damage and destruction and the destructive process of HSV2 encephalitis, which probably commenced 1 ‑ 7 days after infection, was well underway before the plaintiff's birth;
19.3.Such progressive and cumulative cellular damage and destruction continued until such infection was treated with the Acyclovir medication … which curtailed such HSV2 virus' replication/development or spread;
19.4.The cumulative damage to the plaintiff's brain's cells and structures by such virus over the period from infection until its treatment with the Acyclovir medication … was catastrophic and caused her severe spastic quadriparetic cerebral palsy and severe developmental delay.
The plaintiff alleges that the Minister for Health breached his duty of care, alleging negligence from about 7 September 2004 in failing to carry out investigations which would have revealed the viral infection, and in failing to arrange completion and reporting of the results of the screening which later took place within a reasonable time after that screening was carried out. The plaintiff pleads that she ought to have been administered Acyclovir earlier than 21 September 2004, and that if this had occurred her encephalitis and brain injury would have been lessened.
The plaintiff alleges that at 30 September 2004, and until on or about 30 September 2010, she had a viable prospect of establishing a cause of action against the Minister for damages (par 24).
The plaintiff's claim against Slater & Gordon
On or about 6 June 2007, the plaintiff's mother engaged Slater & Gordon to act on her behalf and on behalf of the plaintiff to investigate and, if applicable, pursue a claim for medical negligence in relation to the plaintiff's treatment.
At the time the cause of action arose, the plaintiff's claim was subject to the Limitation Act 1935 (WA). By s 47A(1) of the 1935 Act, the plaintiff was required to give notice to the Minister as soon as practicable after the cause of action accrued, and to commence action within one year from when the cause of action accrued. The time limited by s 47A(1) could be enlarged to six years by consent of the prospective defendant, or by the court on an application brought before the expiration of six years from when the cause of action accrued.
By the time Slater & Gordon were instructed, the 1935 Act had been repealed and replaced by the Limitation Act 2005 (WA). The limitation period applicable to the plaintiff's claim depended on whether the plaintiff's claim was a 'cause of action (childbirth)' as defined in s 7(1) of the 2005 Act.
In this section ‑
cause of action (childbirth) means a cause of action for damages relating to a personal injury to a person that was incurred ‑
(a)in the course of the person's mother giving birth to the person; or
(b)immediately after, and arising from, the person's mother giving birth to the person,
In short, if the claim did come within s 7 as a 'cause of action (childbirth)', the 2005 Act could apply and the court might, under pt 3 div 3 of that Act, extend the time within which the plaintiff could bring her action against the Minister. If the plaintiff's claim was not a cause of action (childbirth) the plaintiff was required to comply with s 47A of the 1935 Act.
The plaintiff alleges that Slater & Gordon:
1.failed to advise the plaintiff's mother regarding the limitation period under s 47A;
2.failed to obtain instructions and apply to the court for leave to pursue the claim pursuant to s 47A(3) and to obtain leave and issue proceedings on or before 30 September 2010;
3.on 7 July 2010, Slater & Gordon issued proceedings on behalf of the plaintiff, without leave or consent having been obtained under s 47A.
The plaintiff alleges that, without leave or consent, no further action could be taken in the proceedings commenced by Slater & Gordon. The action was placed on the Inactive Cases List in July 2013, and subsequently dismissed for want of prosecution under O 44G of the District Court Rules 2005 (WA) (par 28).
The plaintiff pleads a claim against Slater & Gordon for breach of contract or negligence or both for the loss of her cause of action against the Minister.
The defence of Slater & Gordon
For present purposes, it is sufficient to note that in its defence, Slater & Gordon admits that the plaintiff was infected with HSV2 transmitted by her mother, and says the transmission and infection of the plaintiff was prior to or during her delivery (par 5). The defence denies that any breach by the Minister caused the plaintiff's injury and pleads that any injuries suffered by the plaintiff were caused by the HSV2 infection (pars 9.2, 9.3).
Specifically, Slater & Gordon pleads that the HSV2 infection and HSV2 encephalitis were incurred in the course of the plaintiff's mother giving birth to the plaintiff or immediately after and arising from the plaintiff's mother giving birth to her (pars 17.2, 17.3). That is, Slater & Gordon pleads that the plaintiff's cause of action is a 'cause of action (childbirth)' as defined by s 7 of the Limitation Act 2005 and that it was open for the plaintiff to commence an action against the Minister for damages at any time before 30 August 2010 without leave and without needing an extension of time (par 25); alternatively, the defence pleads that the plaintiff could have applied for leave to extend time to commence the action under pt 3 of the 2005 Act (par 28).
Trial of a preliminary issue
The power of the court to order the trial of a preliminary issue is subject to O 32 r 4 of the Rules of the Supreme Court 1971 (WA):
The Court may order that any question or issue arising in a cause or matter whether of law or fact or partly of law and partly of fact, and whether raised by the pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before at or after the trial or further trial of the proceedings, and may direct that a case and the question or issue for decision be stated.
The principles to be applied in considering an application under O 32 r 4 have been set out in several cases; see St Barbara Ltd v Hockley [2013] WASC 283; Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 [4]; Moore v Stockland South Beach Pty Ltd [2011] WASC 337 [32]. In Woodley v Woodley [2014] WASC 377 [4] ‑ [11], Beech J summarised the principles found in earlier authorities, concluding that
Ultimately, the question is whether the court is satisfied that it is 'just and convenient' for an order for a separate trial to be made.
The principal arguments put forward in support of the course proposed by the parties in this case are: first, the parties agree; second, the questions are discrete, and do not require consideration of the evidence regarding the circumstances in which the plaintiff incurred injury; third, the parties consider that the answer to the questions will assist any possible settlement of the claim; fourth, the proposed course requires consideration only of the cause of action as pleaded by the plaintiff in this action, and does not require the determination of complex factual questions which would require expert evidence.
Despite the agreement of the parties, at the hearing of an application to program the hearing of the proposed questions I advanced reservations that I held about the proposal. In short, I accept that the parties regard the questions they want determined as relevant to their settlement negotiation. But in ordering the trial of a preliminary issue, the court should confine itself to real questions in controversy and requiring judicial determination. In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 335 ‑ 357, the plurality discussed the purpose of a judicial determination, and how it is central to the notion of 'a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy' [45]. Their Honours continued:
Courts have traditionally declined to state ‑ let alone answer ‑ preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred [49].
I was informed by counsel for the plaintiff that the writ filed in the District Court in 2010 bore an indorsement of claim, and there had been no pleadings. The questions proposed by the parties are expressed in terms of the cause of action pleaded by the plaintiff in this case. But, in my opinion, determination that the claim pleaded by the plaintiff in this action is a 'cause of action (childbirth)' does not resolve whether the action commenced on behalf of the plaintiff in the District Court was also of that character.
Further, while Slater & Gordon support the determination of the preliminary question, their defence does not accept the plaintiff's pleaded allegation about the nature of the injury incurred by the plaintiff. The question posed by s 7 is not when the cause of action arose, but when the personal injury was incurred and if it arose from the plaintiff's mother giving birth to her. The plaintiff pleads that the injury is the HSV2 encephalitis and resulting brain cell damage and destruction that occurred 'due to such infection's untreated continuation during the period of the negligently caused delay in administering Acyclovir to her' (par 23.3). The defendant distinguishes between the HSV2 infection, the HSV2 encephalitis, the 'Pleaded Injuries' (defined as 'the HSV2 encephalitis, catastrophic brain injury, severe spastic quadriparetic cerebral palsy or severe developmental delay'), and the 'Avoidable Extent Injuries' (the extent to which the plaintiff's injuries would have been lessened had she been administered Acyclovir earlier, as pleaded). It pleads that personal injury was incurred before the 'Avoidable Extent Injuries' and that the plaintiff developed the first symptom, clinical sign or other manifestation of personal injury shortly after her birth.
As a result, I do not believe that the court can, on the pleadings, resolve the questions posed by s 7 of the 2005 Act. To resolve the questions only on the basis of the plaintiff's pleaded claim would be to ignore the issues raised in the defence.
Taking all of these matters into consideration, I do not believe it would be a proper exercise of the court's discretion to order a preliminary determination of the questions proposed. I will not order the trial of the proposed preliminary question.
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