La Hogue v Minister for Health

[2006] WADC 125

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   LA HOGUE -v- MINISTER FOR HEALTH [2006] WADC 125

CORAM:   EATON DCJ

HEARD:   14 AUGUST 2006

DELIVERED          :   17 AUGUST 2006

FILE NO/S:   CIVO 91 of 2006

BETWEEN:   SHELLEY LA HOGUE

Plaintiff (Applicant)

AND

MINISTER FOR HEALTH
Defendant (Respondent)

Catchwords:

Negligence - Damages - Application for leave to bring action under s 47A(3) of the Limitation Act 1935 - Whether just to grant leave

Legislation:

Limitation Act 1935

Result:

Application dismissed

Representation:

Counsel:

Plaintiff (Applicant)      :     Mr R J Nash

Defendant (Respondent) :     Ms J M Barron

Solicitors:

Plaintiff (Applicant)      :     Vertannes Georgiou

Defendant (Respondent) :     Downings Legal

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

Baker v Shire of Albany (1994) 14 WAR 46

Hughes v Minister for Health [1999] WASCA 131

Matheson v Commissioner of Main Roads (2001) 25 WAR 269

Perry v City of Armadale [2004] WASC 167

Quinlivan v Portland Harbour Trust [1963] VR 25

Case(s) also cited:

Alcoa of Australia Ltd v The State Energy Commission of Western Australia; unreported; SCt of WA; Library No 940109; 9 March 1994

Black v City of South Melbourne [1963] VR 34

Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866

Cairns v The Minister for Education, unreported; SCt of WA; Library No 970679; 21 November 1997

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gligorovski v Water Corporation [2003] WADC 290

Halliday v High Performance Personnel Pty Ltd (in liq) (formerly SACS Group Pty Ltd) (1993) 113 ALR 637

Highway Construction Pty Ltd v Commissioner of Main Roads [2000] WASC 275

Jackamarra v Krakouer (1998) 195 CLR 516

Mole v Forest Commission of Victoria [1957] VR 583

Pitcher Products Pty Ltd v Country Roads Board & Anor [1964] VR 661

Western Metals Zinc ZL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152

1. EATON DCJ:  Shelley La Hogue, hereinafter referred to as ("the applicant"), underwent a radical haemorrhoidectomy at Fremantle Hospital on 22 August 2000.  In an affidavit sworn by her on 19 July 2006 she says that within about 24 hours of the surgery she noticed faecal incontinence.  She said that she had not suffered from faecal incontinence prior to the surgery other than for a very short period several years before, which symptoms were then associated with vomiting and acute pancreatitis.  The post‑operative faecal incontinence continued, she said, thereafter.  The applicant asserts that the radical haemorrhoidectomy was the cause of her faecal incontinence.  Further, she says that she was not warned that it might be a potential outcome of that surgery and that if she had been so warned she would not have agreed to undergo the surgery.  The applicant proposes to commence action to recover damages for negligence, the negligence being the failure of those who advised her prior to undertaking the surgery that faecal incontinence was a risk associated with that surgery.  Given that the surgery was undertaken at Fremantle Hospital, being a hospital operated by the Government of Western Australia, the applicant proposes to sue the Minister for Health in that State.

2. Section 47A of the Limitation Act 1935 provides that no action shall be brought against any person 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 his name and address and that of his solicitor or agent, if any; and

   (b)the action is commenced before the expiration of one year from the date on which the cause of action accrued."

3. Section 47A(3) provides:

   "(a)… application may be made to the Court which would, but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required has been given to the prospective defendant.

   (b)Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, 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 thinks it is just to impose."

4. On 21 July 2006 the applicant filed an originating summons in this Court seeking orders for an abridgement of the time for appearance to the summons, for an order that the time limits under s 47A of the Limitation Act be extended to 16 August 2006 for the issue of a writ of summons in the matter and costs.  The application is opposed.

5. The affidavits before me are those sworn by the applicant on 19 July 2006 and 8 August 2006, the affidavit of Leonard Harry Cohen sworn 8 August 2006, the affidavit of Catherine Shaw, sworn 3 August 2006 and the affidavits of Janet Maria Barron, sworn 3 August 2006 and 11 August 2006.

6. By a letter of 26 June 2006 the solicitors for the applicant wrote to the medical superintendent of Fremantle Hospital referring to the haemorrhoidectomy and asserting that had the applicant been advised prior to the surgery that there was a risk of her becoming incontinent she would not have undergone the surgery. The author of the letter indicated that he or she had instructions to issue a writ to prevent the matter being statute barred and enquired as to whether there might be consent to the extension of the 12 month limitation period. In the absence of consent an immediate application was foreshadowed. The solicitors for the insurers of Fremantle Hospital responded by letter of 30 June 2006 indicating that there would be no waiver of s 47A of the Limitation Act and no consent to the issue of proceedings out of time.  Any application for an extension or leave would be opposed.

7. On such an application the Court is required to address three issues raised by the section, they being:

   (1)Was the delay in bringing the action occasioned by mistake or any other reasonable cause?

   (2)Alternatively, was it established that the prospective defendant was not materially prejudiced in its defence or otherwise by the delay?

   (3)If either of the above pre‑conditions for the exercise of the court's discretion was established would it be just to grant leave to bring the action with or without conditions?

8. The authorities make it clear that the whole period up to the point where it was sought to bring the action and the delay in doing so is to be considered.  A pre‑condition for the exercise of the court's discretion to grant leave may be that when the causes of that delay are examined they may be characterised as mistake or any other reasonable cause.  Mistake of itself qualifies as a reasonable cause.  (Matheson v Commissioner of Main Roads (2001) 25 WAR 269 per Murray J at [47].) It is clear also that the three circumstances referred to; the delay in bringing the action being occasioned by mistake, the delay in bringing the action being occasioned by any other reasonable cause and the absence of material prejudice to the proposed defendant in its defence by reason of the delay are disjunctive. If any one of those conditions is satisfied then the Court has a discretion to grant leave if it is just in the circumstances to do so (Perry v City of Armadale [2004] WASC 167 per Le Miere J at [19]).

9. The mistake may be a mistake of fact or of mixed law and fact (Hughes v Minister for Health [1999] WASCA 131). In this matter the applicant said in the first of her two affidavits that from the time of her discharge from Fremantle Hospital on 25 August 2000 she attended many doctors and specialists to try and find a diagnosis and a cure for her faecal incontinence. She did so in a period from approximately 25 August 2000 to approximately December 2003. She says that during 2003 she telephoned Slater & Gordon, solicitors of Perth. She did not attend upon those solicitors. She says that, in the course of that telephone conversation, she was told to seek a diagnosis from a specialist in the Eastern States and not to lodge a complaint with Fremantle Hospital until she had obtained a proper diagnosis and opinion as to the cause of her problem. She says that she was not informed of s 47A of the Limitation Act and its effect.

10. The applicant says that following that advice she travelled to the Eastern States to "try and seek assistance".  She was referred to and consulted a Professor Yik‑Hong Ho, a colorectal surgeon who was, at the time, head of surgery at James Cook University in Townsville.  That consultation took place on 15 May 2004.  It seems that, under the care of Professor Ho various treatments and therapies were unsuccessfully undertaken.  The applicant returned to Perth and in May 2005 again made contact with Slater & Gordon, solicitors who, she says, agreed to act on her behalf with regard to a potential claim against Fremantle Hospital for damages.  In par 19 of her affidavit sworn 19 July 2006, the applicant says:

    "I have ascertained that my solicitors did not take any steps to communicate with the Fremantle Hospital regarding my claim or to seek their leave to extend the limitation period as prescribed in Section 47A of the Limitation Act."

11. The applicant does not elaborate on how she made contact with Slater & Gordon upon her return to Perth, whether she sought advice as to the commencement of an action arising out of the surgery undertaken by her at Fremantle Hospital on 22 August 2000, whether she was given any advice as to the effect of s 47A of the Limitation Act or whether she gave any instructions to her solicitors to make application under that section.  She says that she has ascertained that they did not take any steps to communicate with Fremantle Hospital regarding her claim or seek leave to extend the limitation period.  That may be so.

12. According to the applicant she did not suffer from faecal incontinence prior to the surgery undertaken at Fremantle Hospital on 22 August 2000.  Thereafter, she says, she had a significant and ongoing problem.  There must, therefore, be a temporal connection, at least, between the surgery and the onset of her symptoms.  She might well have reasonably considered that the symptoms resulted from the surgery.  She would have been aware from the outset that she was not, as she asserts, warned or advised of the likelihood of such an outcome prior to agreeing to undergo the surgery.  The applicant's desire to find the cause of the problem and, if possible, a remedy are entirely understandable.  That desire is manifest in her visits to many medical practitioners in the years subsequent to the surgery about the problem.  It is clear that she gave some thought to possible legal action arising out of the onset of symptoms in 2003 but her enquiry, in that regard, did not go beyond a telephone call to a solicitor with the firm Slater & Gordon in Perth.  The applicant then continued her quest for medical treatment and a remedy for the problem.  Some two years after the telephone call to a solicitor in Perth the applicant again contacted that firm.  As mentioned, the extent and circumstances of that contact are not elaborated upon by the applicant.  About a year later she consulted her current solicitor requesting that he act on her behalf and take steps to obtain an extension of the time limit.  She says that she was not aware of any 12 month limitation period until she consulted her current solicitor.

13. As mentioned, on 26 June 2006 the applicant's current solicitors wrote to the proposed defendant giving notice of her intended action for the first time, almost six years after the surgery complained of.

14. I do not discern from the foregoing any mistake giving rise to the delay.

15. Counsel for the applicant submits that the delay in bringing the action was occasioned by reasonable cause.  The meaning of "other reasonable cause" was set out by Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28 as follows:

    "… 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 the giving of notice by a reasonable man."

16. As mentioned, there was a clear temporal connection, according to the applicant, between the onset of symptoms and the surgery.  She would have been aware, as mentioned, that she had not been warned that such an outcome might result from that surgery.  She made a telephone call to a firm of solicitors in Perth in mid‑2003 but took the matter no further.  The fact that she made the call indicates that she contemplated legal action at that time some three years after the surgery.  Some two years later she again made contact with that firm but there is no evidence to suggest that her contact with the firm led to any correspondence or action on her behalf with a view to the recovery of damages.

17. Following the notice being given to Fremantle Hospital by the applicant's current solicitors she was referred to Dr John Saunders of South Perth who, on about 17 July 2006, provided a report to the applicant's solicitors concluding that the applicant's anal sphincter was damaged by the haemorrhoidectomy and as a result she became incontinent within an extremely short time post‑operatively.  Having regard to the foregoing it could not be said, in my view, that the delay in bringing the action was occasioned by "any other reasonable cause".

18. I must consider the question of whether the Minister for Health is materially prejudiced in its defence or otherwise by the delay.  In doing so I need to approach my consideration on the basis that the respondent carries an initial evidentiary onus with the ultimate onus resting upon the applicant.  (Baker v Shire of Albany (1994) 14 WAR 46 per Kennedy J at 56.)

19. The letter written by the applicant's solicitors to the medical superintendent of Fremantle Hospital on 26 June 2006 summarises the applicant's position by asserting that had she been advised prior to the surgery that there was a risk of her becoming incontinent she would not have undergone surgery.  The implication from that letter is that the claim made against the respondent is an allegation of negligence based on a failure to warn in circumstances where there should have been a warning.  Annexed to the affidavit of the applicant sworn 19 July 2006 is a report from Dr John Saunders which is undated.  His report results from a study of a copy of the report from Professor Ho of Townsville dated 19 September 2005, a copy of the letter just referred to written by the applicant's solicitors to the medical superintendent of Fremantle Hospital on 26 June 2006 and a copy of a letter written by the applicant's solicitors to Professor Ho in Queensland of 3 July 2006.  He said that he drew, from those three documents, certain conclusions.  One of those conclusions was that the applicant's anal sphincter was damaged by the haemorrhoidectomy and as a result she became incontinent.

20. In par 25 of her affidavit, sworn 19 July 2006, the applicant asserts that if the haemorrhoidectomy had been properly carried out she would not have suffered damage to her anal sphincter and would not have suffered, as a result, faecal incontinence.  I conclude from the foregoing that the applicant not only asserts that there was negligence in that there was a failure to warn her of the risk of faecal incontinence as a result of the surgery undergone but also that the surgery itself was negligently performed occasioning damage to her anal sphincter and resultant faecal incontinence.

21. It is clear from the affidavit material before me that the applicant was referred by her general practitioner, Dr Merci Kusel, to Fremantle Hospital by letter of 31 August 1999 with a view to a haemorrhoidectomy.  As a result the applicant was reviewed by Dr Greg Dorfman, a surgical registrar at Fremantle Hospital on 15 October 1999.  He concluded that the applicant warranted a formal haemorrhoidectomy.  She was placed on his waiting list for that operation.  According to the affidavit of Catherine Shaw, the acting medico‑legal claims officer at Fremantle Hospital, sworn on 3 August 2006 Dr Graeme Johnson was the resident who witnessed the applicant's consent form on 14 December 1999.  The deponent says that Dr Johnson has no independent recollection of the plaintiff and as a result, no recollection as to the nature and extent of any pre‑operative warnings or risks and complications associated with the surgery provided by him to the applicant on that occasion.  It seems that Dr Johnson will, in evidence, rely on his usual practice in such matters.

22. Another issue which might need to be the subject of evidence at any trial of the matter is that of whether the applicant suffered from faecal incontinence prior to the surgery on 22 August 2000.  She says that she did not and refers, inter alia, to documentation gathered by her to support that contention.  The respondent refers to a letter of 6 November 2000 written by Dr John Armstrong, another surgical registrar at Fremantle Hospital, to Dr Merci Kusel, the applicant's general practitioner.  That letter included the following passage:

    "She was noted at operation, however, to have relatively lax anal sphincters and both pre and post operatively she has been troubled by occasional anal incontinence and faecal urgency.  Prior to her haemorrhoidectomy she has not had previous anal surgery.

    She has had one childbirth requiring an episiotomy and this may be the source of sphincter damage."

23. Catherine Shaw, in her affidavit of 3 August 2006 refers to that letter and infers from the pre‑admission information provided by the applicant to the hospital that the birth referred to would have been in or about 1984.  The records relating to her confinement and labour would, she said, now be 22 years old.  She deposed to having no knowledge of the whereabouts of those records and as to whether they still exist.  Having undertaken a data search she was unable to find any record relating to the applicant at King Edward Memorial Hospital prior to 1990.  Leonard Harry Cohen, solicitor for the applicant has sworn an affidavit to the effect that he has ascertained that his client gave birth to her son on 6 September 1983 at the Wellington Women's Hospital in New Zealand and that patient records relating to that birth are still available.

24. It is clear that the hospital records relating to the actual surgery which was undertaken on 22 August 2000 are still available.  It would not be surprising that, six years later, the various health professionals involved in the applicant's admission and the surgery undertaken by her had no recollection of her at all.  The applicant asserts that the surgery was carried out by a surgical registrar under the care of Dr Cameron Platell.  The identity of the person who actually carried out the surgery is not clear to me.

25. Despite Dr Saunders' conclusion that the anal sphincter was damaged by the haemorrhoidectomy the letter from Dr Armstrong to Dr Kusel appears to confirm the presence of sphincter damage and implies that there was a cause of that damage other than the radical haemorrhoidectomy suggesting that it might have been an earlier episiotomy.  The issue of whether there was pre‑existing faecal incontinence, a contention for which there is some support in the medical records, and that of whether the damage to the sphincter was occasioned by the actual surgery on 22 August 2000 or was occasioned by some earlier event are themselves likely to be highly contentious in the event that litigation proceeds.  According to the affidavit material before me Dr Dorfman, who reviewed the applicant prior to the surgery and who later reviewed her in outpatients' clinic, has no independent recollection of her and has no recollection as to the nature and extent of any pre‑operative warnings of risks and complications associated with the surgery.  He also would have to rely on his usual practice.  Those matters are deposed to in the affidavit of Janet Maria Barron sworn 3 August 2006, she having deposed that the factual material contained within her affidavit is true to the best of her knowledge, information and belief and that facts stated which are not within her own knowledge and belief are from sources which give her grounds for belief that the information is true and accurate.

1. Counsel for the applicant submits that it is common knowledge that doctors in hospitals see large numbers of patients and suggests that even had the action been commenced within 12 months it is doubtful whether Dr Johnson would have recalled any specifics of any warning which may or may not have been given to the applicant in December 1999.  He further submits that the doctor should have made a note of any warning that he gave to the applicant.  I am informed that Dr Johnson and Dr Dorfman both now have no recollection of the applicant both before and after the surgery.  It is speculative to suggest that they may not have had a recollection of her even if the action had been brought within 12 months.  It is not possible to say now whether they would then have had such a recollection.  What can be said now is that they do not have a recollection of the applicant.  It is notorious that the passage of time affects memory.  That is particularly so when there is no special reason for recalling a person or event.  In the absence of any prompt notice or the commencement of an action within 12 months there was no special reason to recall the surgery or the applicant.  That situation could only be exacerbated by the passing of several years.

2. I conclude that the respondent has discharged its evidentiary onus as to material prejudice.  It is therefore for the applicant to show an absence of material prejudice.  Counsel for the respondent submits that as a result of the applicant's delay in making any complaint or bringing an action the respondent is precluded from adducing evidence from its witnesses who are either unavailable and/or have no recollection of the matter and from adducing its best documentary evidence.  Further, counsel for the respondent submits that the respondent has been denied the opportunity of properly investigating the circumstances surrounding the alleged negligence and having the applicant medically examined at a time reasonably proximate to the alleged injury and for a considerable period thereafter.

3. On the subject of absent witnesses Ms Shaw deposed to the retirement of Ms Jill Boucaut, a physiotherapist at Fremantle Hospital who had contact post‑operatively with the applicant.  Ms Shaw deposes to Ms Boucaut being away on holiday in Africa and being unable to contact her by telephone.  That evidence does not lead me to conclude that Ms Boucaut is unavailable but rather that she might be difficult, temporarily, to contact.

4. It is clear that the hospital documentation relating to the surgery on 22 August 2000 and the pre and post‑operative procedures is still available.

5. Given that the primary allegation made by the applicant is as to a failure to warn it is likely that there will be a factual issue as to what was or was not said by doctors and medical staff at Fremantle Hospital to the applicant prior to her agreeing to undergo the surgery.  The applicant's claim will be that she was not warned of a material risk.  In order to properly determine that issue the tribunal of fact will need to hear evidence as to what was said by both the applicant and those with whom she spoke in the period prior to the surgery.  On that principal issue alone I conclude that the respondent is materially prejudiced in its defence by the delay.  That being so, and there being no mistake or any other reasonable cause giving rise to the delay, I consider that it would not be just now to grant leave to bring the action.  The application is therefore dismissed.