Lovett v Papadopol - [1998] QSC 236

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.7709 of 1998
Before the Hon. Mr Justice Mackenzie
[Lovett v Papadopol & Ors]
BETWEEN:
  RENI LOVETT
  First Plaintiff
AND:
  EDDIE LOVETT
  Second Plaintiff
AND:
  GEORGE PAPADOPOL
  First Defendant
AND:
  PARK HAVEN PRIVATE HOSPITAL PTY LTD
  (ACN 010 491 915)
  Second Defendant
AND:
  ENDOCORP PTY LTD
  (CAN 057 448 996)
  Third Defendant
JUDGMENT - MACKENZIE J.

Judgment delivered 30 October 1998
CATCHWORDS: NEGLIGENCE - medical procedure - whether vicarious liability is applicable.
STATUTE - interpretation - application to extend the limitation period for bringing an action.
Limitation of Actions Act 1974 s.31(2)(b)
Dwan v Farquhar (1988) 1 Qd.R234

Counsel:Mr R Morgan for the first and second plaintiff
Mr D Tait for the first defendant
Mr P Robinson for the second defendant

Solicitors:Baker O’Brien & Toll as town agents for Wilson Ryan & Grose for the first and second plaintiff
Flower & Hart as town agents for Robert Leu & North Solicitors for the first defendant
Carter Newell as town agents for Connolly Suthers Lawyers for the second defendant

Hearing date: 26 October 1998
JUDGMENT - MACKENZIE J.

Judgment delivered 30 October 1998

This is an application to extend the limitation period for bringing an action against the first and second defendants. It is not intended to proceed against the third defendant. The claims which the plaintiffs wish to pursue arise from an operation performed by the first defendant at the second defendants’ hospital in late 1992.
The first defendant does not now resist the order sought. However he seeks costs of this application since, it is said, the critical evidence which caused him to change his stance was only served at a late stage after the proceedings for an extension of time had commenced. The writ was issued on 10 December 1997, and the summons, which has been adjourned from time to time, was filed the same day, with an initial return date of 2 February 1997.
So far as the second defendant is concerned an extension of the limitation period is resisted on the basis that the applicant has failed to provide sufficient evidence to establish that there is a right of action against it.
It is necessary to set out the essential facts to provide a context for consideration of the application. The first plaintiff, who now resides in the Philippines, was referred to the first defendant by a general practitioner in about October 1992, because she wished to adopt contraceptive measures other than the Pill. The first defendant recommended the option of inserting clips on the first plaintiff’s fallopian tubes, and subsequently in late October 1992 performed the procedure on her at the second defendant’s hospital. About 18 months after the procedure the first plaintiff began to experience pain in her abdominal region which over time increased in intensity. In about May 1994 she saw a general practitioner in Cebu City, who prescribed pain killers and rest. By November 1994 the pain was worse so she consulted Dr Balugo in the Philippines, who diagnosed a small cyst which in her opinion was too small to justify surgery. Medication was prescribed for the pain.
Then about the end of 1995 because of ongoing pain and discomfort she saw Dr Villaneuva in Cebu City. Dr Villaneuva advised her that a cyst of the kind she had should not be causing the level of pain experienced. She prescribed "medication aimed at dissolving the cyst" and advised against surgery. By November 1996 the pain was severe, and the plaintiff consulted Dr Atoc, who recommended exploratory surgery. Upon this being performed she found that the clips had detached from the fallopian tubes and partially embedded at the base of the uterus.
Dr Atoc describes the process as the clips cutting through the fallopian tubes at the area where they were clipped causing the clips to fall off and lodge where they were found. The tissues at the clipped mid-segment area would undergo tissue necrosis following cessation of blood supply to the clipped area. That event combined with the weight of the metal clips caused them to cut through the soft tissues and fall off. The operative record from Mactan Community Hospital confirms this and the presence of an ovarian cyst on the left side.
This evidence establishes that a material fact of a decisive nature relating to the plaintiffs’ right of action, discovery that the clips had detached and had embedded themselves in the plaintiff’s internal organs, was not within the plaintiffs’ knowledge until a date after the commencement of the year last preceding expiry of the limitation period. It also establishes that she had taken all reasonable steps until then to obtain appropriate advice as to the cause of the pain.
Evidence to establish that there is a right of action apart from the defence founded on the expiration of the period of limitation is necessary (s.31(2)(b) Limitation of Actions Act 1974). An affidavit of Dr Peter Bayliss was to the effect that the relevant devices would not become dislodged if applied correctly. The particular device found by Dr Atoc was not approved for use in Australia at the time of its insertion. The only passage in the affidavit concerning the second defendant’s position is his statement that if the procedure was carried out in a private hospital, it was his experience that nursing staff employed by the hospital would provide pre and post operative care to the patient. The first defendant seeks costs on the basis that this affidavit failed to establish facts sufficient to make it inappropriate for the first defendant to resist the application.
The change in the first defendant’s attitude was brought about by a series of answers by Dr Atoc about her findings at the operation which came into evidence as an annexure to an affidavit of the plaintiffs’ solicitor filed by leave at the hearing. The answers were sworn on 6 June 1997 by Dr Atoc, and it appears that the document was only recently located in the records of the plaintiffs’ former solicitor who ceased to act because of ill health. It was on the basis of this document that the first defendant now concedes that the requirements of s.31(2)(b) have been satisfied in respect of him. The concession by the first defendant’s counsel that a proper basis for time being extended in respect of the first defendant is appropriate having regard to the totality of the evidence now available. I will return to the question of costs later.
The second defendant submits that s.31(2)(b) is not satisfied in its case. It relies particularly on a passage from the judgment of Thomas J in Dwan v Farquhar (1988) 1 Qd.R 234, 239 which is as follows:-
"... the law does not encourage futile exercises. It is therefore not surprising to find that time may not be extended unless "it appears to the Court that there is evidence to establish the right of action" (s.31(2)(b)). The basis of the Chamber Judge’s refusal was that it did not appear that there was evidence to establish the right of action alleged against the respective defendants. The sole question on this appeal is whether his Honour was right in so concluding.
An applicant is not required fully to prove his case in order to obtain an extension of time, but he must make it appear to the Court that there is evidence to establish his right of action. The nature of the evidence needed to establish this has been expressed in different ways in a number of cases, and although the following views emphasise different aspects of the way in which material should be presented and considered upon such applications, they are in my view consistent. Firstly it is not necessary that the evidence be the actual evidence to be adduced at the trial, or that it be in admissible form (Martin v. Abbott (Australasia) Pty Limited [1981] 2 N.S.W.L.R. 430, 443). Hearsay evidence may be used, although there may be cases where the Chamber Judge may decline to act upon it according to the circumstances in which it is produced. The following useful statements have been made -
‘... the language of the sub-section is satisfied if it is made to appear to the Court that the evidence exists and can be adduced." (Per Gowans J. in Evans v.Repco Transmission Co. Pty Ltd [1975] V.R.150, 152).’
‘... what must appear to the Court is that there is evidence which can be adduced from which the Court could form an opinion that the applicant has a right of action.’ (Per Kelly J. in Ex parte Minoque [1980] Qd.R.350, 352; approved by the Full Court in Minoque v. Bestobel Industries Pty Ltd [1981] Qd.R.356, 358; cf. Martin & Abbott at 443 and Baker v. Australian Asbestos Insulations Pty Limited [1984] 3 N.S.W.L.R. 595, 603.)’
At the same time it is not right for the Court on such an application to imagine circumstances or put together a case which is not justified by evidence or apparent evidence. Guesses (as distinct from proper inferences) are no more permissible on these applications than they are upon a trial (cf. Jones v. Dunkel (1958) 101 C.L.R. 298, 305)."
Examination of the statement of claim shows that as against the second defendant the allegations are the following:-
The first defendant was practising out of the second defendant’s hospital. The first defendant was either employed by the second defendant as a specialist surgeon or was the agent of the second defendant otherwise than as an employee, and acted within the scope of his authority from the second defendant. The second defendant conducted the Park Haven Private Hospital and offered and held itself out as offering the services of a private hospital. It provided managed and maintained the hospital and employed and engaged there medical practitioners and other medical staff for pre and post operative care. It offered the facilities of the hospital for the use of patients desiring a service of specialist surgeons. The operation was carried out in or about late October 1992, by the first defendant at the second defendants’ hospital. The second defendant owed the plaintiff that duty of care owed by a hospital to its patients “namely to exercise in all aspects of its care and treatment of (sic) advice to the first plaintiff the standard skill and care possessed by a private hospital.” The second defendant at all material times well knew or should have known that the clips would often cut through a patients fallopian tubes causing the clips to dislodge. Neither prior to the operation or at any time subsequent to the initial consultation was the first plaintiff advised by the second defendant of the significant risk that the operation would be unsuccessful or of the significant risk that the clips would dislodge and cause pain and disability.
The pleading concerning the personal injuries, loss and other damage is not particularly coherent or comprehensible. It is best in the circumstances to reproduce it in full.
“18.The First Plaintiff’s personal injuries, loss and other damage were occasioned by the negligence and/or breach of agreement of the Second Defendant for whose negligence the First Defendant is also liable, particulars of which are as follows:-
(a)Failing to warn or adequately warn the First Plaintiff of the risks of unsuccessful surgery when a reasonable prudent specialist would have done so;
(b)Carrying out the surgery when it was unnecessary and when conservative measures should have been taken;
(c)By the negligence of the Second Defendant, failing to employ and or appoint a competent surgeon for the treatment of the First Plaintiff’s condition when a reasonably prudent hospital would have done so;
(d)Failing to exercise proper care and skill with respect to the operation and use of the said clips when a reasonably prudent specialist would have done so;
(e)The First Plaintiff will further, if necessary, rely upon the doctrine of res ipsa loquitur as evidence of negligence of the First and Second Defendants;
(f)Failing to ensure that the Hulka clips were not used when unsafe not to do so.”
The prayer for relief is, in the case of each plaintiff, expressed as a claim for damages for negligence. The notion of a separate cause of action based on breach of agreement is not referred to, unlike the position in para.18 of the Statement of Claim. It may also be, in para.18, that the references to the second defendant and the first defendant in the first sentence have been reversed. That reading would give the paragraph more sense.
Although analysis of what is alleged against the second defendant is made difficult by the confused nature of the pleading three discernible strands appear to be relied on. One is that the first defendant was employed by the second defendant and that the second defendant is responsible for any negligence of the first defendant. Another is that the first defendant was in some other relationship with the second defendant under which the second defendant incurs liability for any negligence of the first defendant. The third is that the second defendant had an independent duty to exercise care to patients using its facilities. It is alleged that it fell short of this duty because it knew or ought to have known that the clips may dislodge and did not advise the first plaintiff of the risk that the operation may be unsuccessful.
The particulars in para.18 which appear to relate primarily to the first defendant’s actions are (a), (b) and (d). Paras. (e) and (f) can apply independently to both the first and second defendants. Paragraph (c) is concerned only with the second defendant.
The question then is whether there is any substance in the second defendant’s submission that the requirements of s.31(2)(b) have not been satisfied. The only evidence concerning the relationship between the first defendant and the second defendant is to be found in the affidavit of Mr Carson, Chief Executive Office of the second defendant. Its effect is that the hospital has never employed doctors, specialists or other medical practitioners, at least in clinical positions. A doctor is allowed to use the facilities of the hospital only if he has “clinical privileges” which the first defendant had at the material time. The application form for clinical privileges includes a requirement that the doctor agree to abide by the by-laws for visiting medical and allied health professionals of Park Haven Private Hospital as published revised and circulated from time to time. These are not in evidence.
The evidence seems to be uncontestable that the first defendant is not an employee of the second defendant. Liability on the basis of master and servant is therefore excluded. The nature of the right given to the first defendant to use the second defendant’s facilities and their rights inter se are not explained. However there is nothing to suggest that the second defendant played any part in causing the first plaintiff to have the operation at its hospital. In the absence of anything to the contrary the highest the potential evidence goes is to establish that the first defendant had some kind of licence to use the second defendant’s facilities. Some reliance was placed by the plaintiffs on the fact that MBF benefits were paid to the hospital in respect of the operation. However, the relevant document also discloses that the doctor received the relevant payment in respect of his fee from that source as well. In my view that does not assist the plaintiffs on the issue of the relationship between the first defendant and the second defendant.
In my view the plaintiffs have not provided evidence to establish a right of action against the second defendant by reason of it being responsible for the acts of the first defendant. With respect to the second defendant’s primary liability, the evidence seems to establish that the second defendant was not an employer of the surgeon and did not play a role in appointing him to treat the first plaintiff’s condition. The engagement of the first defendant was arranged solely between the first plaintiff and the first defendant. On the evidence as it stands the plaintiffs cannot demonstrate that there is a case against the second defendant based on that particular.
In the light of the evidence that the detachment of the clips occurred as a consequence of the method of fixing them during the operation there is no basis for the application of res ipsa loquitur against the second defendant.
With respect to particular (f) in para.18, there is no evidence establishing, or from which it can be inferred, that the second defendant was in any way concerned or entitled to be concerned in deciding what equipment was used by the first defendant. I am not satisfied that there is any case against the second defendant based on this particular on the evidence as it stands. Dr Bayliss’s evidence as to the functions of a private hospital, set out above, do no more than state in broad generalities what is obvious. That evidence does not assist in resolving the question of liability of the second defendant.
On the state of the evidence the plaintiffs have failed to demonstrate evidence that they have a right of action, independently of the defence based on the limitation period, against the second defendant. To the extent that the summons relates to extension of time to enable the plaintiffs to commence an action against the second defendant it is therefore dismissed with costs to be taxed.
With respect to the first defendant’s application for costs, I am not satisfied that in the particular circumstances of the case, and in particular because of the change of solicitors and the circumstances thereof, that the plaintiff should be required inevitably to pay the costs of the present application. I will therefore reserve the costs of this application as between the plaintiffs and the first defendant.
The orders are as follows:-
1.That as between the plaintiffs and the first defendant:
(a)The time within which the plaintiffs are able to commence an action for personal injuries, loss and other damage including loss of consortium resulting from the operation which was carried out upon the first plaintiff by the first defendant at the Park Haven Private Hospital in or about October 1992 is extended to and including the Tenth day of December, 1997;
(b)Costs of and incidental to the application are reserved.
2.That as between the plaintiffs and the second defendant, the summons is dismissed with costs to be taxed.