Lowther v Brisbane South Regional Health Authority

[1998] QSC 19

IN THE SUPREME COURT

OF QUEENSLAND

No.1820 of 1993
Brisbane

Before the Hon. Mr Justice Shepherdson

[Lowther v Brisbane South Regional Health Authority]

BETWEEN:
  RONALD CHARLES LOWTHER

Plaintiff

AND:
  BRISBANE SOUTH REGIONAL HEALTH AUTHORITY

First Defendant

AND:
  DOCTOR PETER HEATHCOTE

Second Defendant

CATCHWORDS:           CIVIL PROCEDURE - Order 90 rule 9 - Application for leave to take fresh proceedings - Damages sought for personal injuries occasioned by defendant(s) alleged negligence on 15 December 1990 - writ issued 26 November 1993 - last step - entry of appearance 27 June 1994 no statement of claim delivered - the delay not satisfactorily explained; delay causing prejudice to defendants (see Borg v. Muscat (1972) Qd R 253; Herron v. McGregor (1986) 6 NSWLR 246; Stollznow v. Calvert (1980) 2 NSWLR 754; Kaats v. Caelers (1966) Qd R 482 and Brisbane South Health Regional Authority v. Taylor (1996) 70 ALJR 866) - further prejudice due to lack of clarity of basis of claim in negligence - plaintiff fails to discharge onus (see William Crosby & Co v. The Commonwealth (1963) 109 CLR 490; Australian Broadcasting Commission v. Industrial Court of South Australia (1985) 159 CLR; Campbell v. United Transport (1966) Qd R 465) - Application dismissed.

Counsel:  Mr Godsall for the plaintiff.

Ms Dalton for the defendants.

Solicitors:  Messrs Stephens & Tozer Solicitors for the plaintiff.

Messrs Minter Ellison Solicitors for the defendants.

Hearing date:          23 January 1998  

JUDGMENT - SHEPHERDSON J.

Judgment delivered 6 February 1998

The applicant plaintiff has applied, pursuant to order 90 rule 9, that he have leave to take fresh proceedings in this action.  The application is opposed.  The writ of summons was issued on 26 November 1993.  In it the plaintiff claimed damages and loss for personal injuries caused to the plaintiff by the negligence of the first and/or second defendant and interest.  The last step in the action was the filing of an entry of appearance by both defendants on 27 June 1994. 

The summons before me was filed on 28 August 1997 and it first came before me on 22 December 1997. 

After hearing argument on that day I directed that the applicant deliver a statement of claim by 4pm on 12 January 1998.  I did so because without it neither the defendants nor I could be certain of the basis of the plaintiff’s case in negligence.

The statement of claim shows the negligence alleged against each defendant is said to have occurred on 12 December 1990 when the plaintiff, then an in-patient at the Princess Alexandra Hospital underwent a urodynamics test performed by a technician.   (I note the plaintiff in his affidavit has sworn that the test occurred on 15/12/1990 but I regard this error as unimportant).  In the Statement of Claim the plaintiff alleges “no antibiotic cover was provided to plaintiff during such urodynamics test” and “as a result of such urodynamics test without antibiotic cover the plaintiff was infected with right pyelonephritis leading to inflammation of the right seminal duct, septic shock and ultimate right orchidectomy.”

The second defendant was and is a specialist urologist and at the material times a consultant in urology at Princess Alexandra Hospital.  Princess Alexandra Hospital was and still is administered by the first defendant.

The applicant plaintiff was born on 9 April 1947.

On 11 October 1990, Dr Graham Holmes, a urologist practising at Wickham Terrace wrote a letter to Dr A Reynolds, Camp Hill Medical Centre, Coorparoo.  This letter concerned the plaintiff.  Dr Holmes sent a carbon copy or duplicate to the second defendant care of Urology Outpatients Department at Princess Alexandra Hospital.  The letter referred to Dr Holmes having seen the plaintiff “with his urinary difficulty”.  It appears from this letter that in the past the plaintiff had been an in-patient at the Princess Alexandra Hospital and that this was in respect of obstructive urinary symptoms.  The letter noted also that the applicant “has a complicated past history of congenital heart disease due to a ‘floppy valve’”.

The letter concluded:-

“I have arranged for him to be reviewed at the Urology Outpatients at the Princess Alexandra Hospital where I believe he requires further investigation in the form of repeated endoscopy and almost certainly urodynamics to see if there is anything further that needs to be done for Ron’s bladder.  One may even have to consider reimplanting his ureter although there are no symptoms of infection.”

The plaintiff has a report of Dr Robert F O’Shea (included in Exhibit RCL3) made after examining the plaintiff on 17 December 1996.  This shows that in 1966 the applicant was advised (in Dr O’Shea’s opinion correctly)  to have antibiotics for all procedures involving infections.  This advice was given to the plaintiff at Prince Charles Hospital Chermside.

Dr O’Shea’s report is one of a number of medical and hospital reports obtained by the applicant and his solicitors.

One of the hospital reports before me is a letter dictated 2 May 1996 and typed on 8 May 1996 from Princess Alexandra Hospital (written by the urology registrar Dr Janelle Munns to the applicant’s solicitors in reference to the applicant).  This letter refers to the plaintiff and says:-

“I have received a letter dated 10th April 1996, requesting ‘could you kindly advise whether our client was at any time given Penicillin, or any other antibiotic when the urology test was administered’.  I am uncertain which test you are referring to, as this gentleman has had several urological investigations.

However, I will provide whatever information I can glean from his chart.  This gentleman had a cystoscopy on the 25th September 1975, at which time I can find that no antibiotic was administered.  He then had a diverticulectomy on the 2nd October, 1975.  I can find no evidence that antibiotics were given during this procedure.

In 1982, he was admitted with recurrent right pyelonephritis, and was given I.V.Ampicillin during his hospital stay, and was sent home on long-term antibiotics, namely Bactrim.

On the 22nd January 1987, he had a cystourethroscopy and bladder neck incision.  I can find no evidence that antibiotics were given during this procedure.  He was again admitted on the 24th January 1987 with a urinary tract infection, and was given I.V. Gentamicin and Amoxil whilst an inpatient, and was sent home on oral Amoxil.

On the 12th December 1990, he had urodynamics performed.  I could find no evidence that antibiotics were given during this procedure.

On the 16th December 1990, he was admitted with right pyelonephritis, and was given I.V. Amoxycillin and Gentamicin on admission.  He developed right epididymitis and septic shock, and was admitted to the Intensive Care Unit on the 18th December 1996, at which time I.V. Ceftazidime, Gentamicin, and Flagyl were commenced.  He had a right orchidectomy on the 3rd January 1991, during which the I.V. Ceftazidime, Gentamicin, and Flagyl were ongoing.  He was again admitted on the 11th April 1991, for a cystourethroscopy for which he was given I.V. Gentamicin.”

This letter gives a useful summary of the applicant’s inpatient stays in the Princess Alexandra Hospital, the summary being gleaned by Dr Munns from the applicant’s chart and in response to the applicant’s solicitors request for advice “whether our client was at any time given penicillin or any other antibiotic when the urology test was administered”.

I should at this stage say I do not have the complete medical records of the applicant kept by the Princess Alexandra Hospital but I do have copies of what the plaintiff’s solicitor swears are “Princess Alexandra Hospital records relative to the plaintiff”.  I shall return to these later.

I should at this stage say that an affidavit by the plaintiff shows that he, applying under the name of Steven Brett, obtained a number of medical reports from the Royal Brisbane Hospital.  He says he did so because he did not wish to reveal his true identity in case the hospital’s reports were influenced by material obtained from other hospitals.  The applicant’s solicitors received 3 reports (in 1995 and 1996) from Royal Brisbane Hospital in respect of a Steven Brett born 12 May 1947.  None of these (which obviously relate to a Steven Brett) is of any assistance in the present matter save that, in a minor way they show that in the 3 years between 27 June 1994 and the filing of the present application the plaintiff and his solicitors have not been entirely inactive in pursuing the plaintiff’s claim despite not actually delivering any Statement of Claim.

I now refer to photocopies of certain Princess Alexandra Hospital entries relating to the plaintiff because the plaintiff relies on these as showing that before 12 December 1990 the first defendant and particularly Dr Heathcote knew or ought to have known that with the plaintiff’s history of infections while an in-patient at the Princess Alexandra Hospital, antibiotics should have been administered before the urodynamics test was performed.

1.A photocopy of a single page (exhibit RDS3) showing the plaintiff was admitted as an inpatient on 24 September 1975 and discharged as an inpatient on 26 September 1975.  It refers to “Dr Moy urology” and there is a note “allergies nil”.

2.A single sheet (exhibit RDS4) in respect of plaintiff’s admission as an inpatient on 1 October 1975 and his discharge on 31 October 1975.  It refers to operations including ‘cystoscopy’ and condition treated including “bladder and Marions Disease”. (Two other words are indecipherable).

3.Exhibit RDS5 is a summary of admission in respect of the period 1/10/75 to 31/10/75.  It refers to the surgical procedures undergone and has annexed to it a photocopy of a histopathology report dated 6/10/75 which says:-

“Biopsy from bladder neck: mild non specific chronic inflammation”.

Exhibit RDS5 notes that in the first few post-operative days following surgery by Dr Moy, that drainage from a supra-pubic drain was ‘heavily bloodstained’.

4.Exhibit RDS1 is a letter from the urology registrar L Thompson to Dr R M Davis of Coorparoo Clinic referring to the plaintiff.  This letter begins “As you know Ronald Lowther suffers from recurrent renal infections”.

5.Exhibit RDS2 is a one page document being a summary of admission when the plaintiff was an inpatient from 24/2/82 to 26/2/82 and 5/3/82 to 9/3/82.  I note there appears to be a typographical error in that it is said that he was admitted on 24/2/81.

This summary (by ‘L Thompson Registrar’) refers to the 1975 procedures and says “he presented to urology outpatients in February 1982 with recurrent right sided pyelonephritis” and was admitted for investigations.  The summary refers to a number of alternatives and concludes:-

“After much discussion with the patient it was decided to embark on a long course of prophylactic antibiotics and to review him at outpatients in one month with a microurine one week before the appointment.  He was also to have a urinary flow rate and possible cystoscopy in the future.”

6.Exhibit RDS6 is a document headed “Progress Notes” referring to surgery which the plaintiff underwent on 22/1/87.  It shows the surgeon was Dr Heathcote and his assistant was Dr Nicol.  The surgery was undergone on 22 January and appears to have included “cystoscopy”.

7.Exhibit RDS7 is a single page showing drugs prescribed and that on 22 January the plaintiff had only panadol.

8.Exhibit RDS8 is a summary of admission in respect of the plaintiff’s admission to hospital from 21/1/87 to 24/1/87 and from 3/2/87 to 9/2/87.  It shows the consultant was Dr Heathcote.  The summary appears to have been prepared on 10/2/87 by Dr David Nicol the urology registrar.  It refers to the surgery undergone - cystoscopy on 22/1/87.  It notes that on 3/2/87 the plaintiff presented to casualty with frank haematuria associated with fever, rigors and general malaise.  On the basis of a diagnosis made, the plaintiff was admitted to the ward to have bladder irrigations and IV antibiotics.  The summary noted that the haematuria settled over the next few days and his systemic symptoms settled with the antibiotics.

9.Exhibit RDS9 is a medication chart dated 3 February 1987 which shows that the plaintiff had Amoxil and Gentamicin.  Exhibit RDS8 shows that on discharge the applicant was being treated with “Amoxil”.

10.Exhibit RDS10 is a document showing regular prescriptions for the plaintiff in early February and again shows Amoxil and Gentamicin.

11.Exhibit RDS11 is a summary of the plaintiff’s admission to the hospital on 9 March 1988 and his discharge 2 days later.  The consultant was noted to be Dr Heathcote.  This summary appears to have been prepared on 19 March 1988 by a Dr David Winkle urology registrar.

12.Exhibit RDS12 is a single page document dated 9 March 1988 and headed “Progress Notes”.  I do not find this exhibit of any assistance without the notes on it being translated and explained to me.

13.Exhibit RDS13 is a single page showing entries on 7 and 11 April 1988.  Dr Heathcote’s name is mentioned.  The plaintiff’s counsel says this document shows that on 11 April 1988 Dr Heathcote saw the plaintiff.  However, as will later appear, Dr Heathcote says that the entry for that date, made with a rubber stamp “Dr P Heathcote” does not necessarily mean that he saw the plaintiff. 

In an affidavit sworn on 16 December 1997 the plaintiff has said that in January 1991 after he had his orchidectomy and was recovering in the urology ward he had a conversation with a specialist doctor whose name he cannot now recall and this doctor told him his infection was caused by the urodynamic test. 

He has further sworn that in April 1991 he returned to the Princess Alexandra Hospital to have further tests done on his bladder, that those tests were performed by Dr Heathcote who told him his problems were caused by the urodynamic test.  The plaintiff further said that when undertaking those bladder tests he was given antibiotics plus local anaesthetic.

Before turning to the respondents material I mention a report dated 17 December 1997 from Medico-Legal Associates Pty Ltd of Sydney provided to the plaintiff’s solicitors.  The report comes from Douglas Keller a consultant urologist.  I quote from it:-

“1.What precisely is involved in urodynamic test?  A urodynamic test is one where the bladder is catheterised and pressure studies are done by means of running fluid into the bladder and estimating pressures and also estimating when the bladder is full and the way it empties after the catheter had been removed.

2.What precisely is involved in a cystoscopy?  A cystoscope is an instrument which is used to study the interior lining of the bladder and also the urethra which is a tube leading from the bladder to the exterior.  It has a metal sheath which is a tube and a telescope which goes through the tube and gives a light source as well as magnification of the lining of the bladder or of any foreign body or stone that could be in the bladder.  It also is used to catheterise the tubes from the kidney to the bladder to get more diagnostic information and also it does allow the surgeon to estimate the size of any prostate gland enlargement and the type of treatment that would be necessary to treat that particular organ.

3.Would it be medically prudent to give a person undergoing urodynamics procedure antibiotics if the doctor has full knowledge the patient has a past history of infection?  This question relates to Mr Lowther getting infected and requiring antibiotics when he had his cystoscopy.   This is a “hairy” question.  We do know that because there has been an overuse of antibiotics that the organisms are becoming resistant to the antibiotics and people are dying because of them having developed an immunity to the antibiotics.  Under normal circumstances one would not give antibiotics but if there had been a history of urinary tract infections then one would consider but not necessarily advise an antibiotic cover either for the urodynamic study or cystoscopy.”

For the respondent defendants an affidavit of Patricia Kirsty Feeney the solicitor employed by the defendants’ solicitors has shown that on 18 September 1995 she met the second defendant and during that meeting had with her a photocopy of the plaintiff’s medical record kept by the Princess Alexandra Hospital to which the second defendant referred during their meeting.  She swears that the second defendant informed her and she verily believes:-

(a)he had only very limited independent recollection of his treatment of the plaintiff by which he meant that he had a vague memory of the plaintiff’s appearance but little if any independent recollection of the plaintiff’s medical treatment.

(b)after reading the notes in the medical record he was able to say that although the plaintiff was referred to him by Dr Holmes he did not actually see or treat the plaintiff until after the plaintiff was admitted to hospital on 16 December 1990.

(c)after reading the letter of referral from Dr Holmes (to which I have already referred) he had no further recollection of the plaintiff or his medical treatment.

(d)that the plaintiff was seen by Dr David Nicol (then the second defendant’s urology registrar) in the outpatients department of the Princess Alexandra Hospital on 29 October 1990 and that a notation in the hospital records of 29 October was made by Dr Nicol in relation to his consultation with the plaintiff.  A photocopy of the notation of 29 October is exhibit PKF3.

(e)that the urodynamic test report was prepared by Dr Ross Cartmill on 12 December 1990 and this was probably the day upon which the test was conducted - a photocopy of that “full urodynamics report” is exhibited to Miss Feeney’s affidavit (exhibit PKF4). 

Miss Feeney has further sworn that on 18 September 1997 she had a telephone conversation with a person who she verily believes was Dr David Nicol and that he informed her and she verily believed that:-

(i)he is now the director of the Urology Department at the Princess Alexandra Hospital.

(ii)he had a vague memory of the plaintiff’s appearance which he thought may have been due to the fact that he had some peripheral involvement in the plaintiff’s treatment while an inpatient at the Princess Alexandra Hospital in the early 1980's at which time he, Dr Nicol, was a resident medical officer and that he recalled the plaintiff because he had a distinctive appearance.

(iii)other than the involvement which I have just set out Dr Nicols said he had no recollection of his treatment of the plaintiff.

(iv)that Dr Nicol had spoken to Dr Heathcote earlier in the day of the 18 September 1997 and until that conversation he (Dr Nicol) did not recall having seen the plaintiff in the outpatients department on 29 October 1990.

(v)after Miss Feeney had read to Dr Nicol the notes of the consultation on 29 October 1990 (exhibit PKF3) and the letter of referral from Dr Holmes dated 11 October 1990 (exhibit RCL1) Dr Nicol said he had no further recollection of the plaintiff or his treatment.

On 19 September 1997 Miss Feeney had a telephone conversation with a person who she verily believed was Dr Ross Cartmill and that Dr Cartmill informed her and she verily believed that:-

(i)      given his busy schedule he did not have time to meet with Miss Feeney to review the medical record in relation to the matter before the time set for the hearing of the application.

(ii)     he had no independent recollection at all of the plaintiff or his involvement in the plaintiff’s treatment.

(iii)     he had read the report of the urodynamic test (a copy of which Miss Feeney had caused to be sent by fax to Dr Cartmill’s offices earlier in the day) but that this document had not enabled him to recall anything further about the plaintiff or his treatment.

(iv)     urodynamic tests are not performed by doctors but by clinically trained technicians; that the doctors then review the results of the tests and prepare a report based on those results and accordingly he said that he may never have seen the plaintiff despite the fact that he prepared the report.

(v)     that if their names are not recorded in the charts it would be extremely difficult now to identify the technicians who performed the urodynamic test on the plaintiff.

Miss Feeney has further sworn that she has reviewed the medical record of the Princess Alexandra Hospital and is unable to find a notation of the names of the technicians who performed the urodynamic test.

I should add that Miss Feeney’s affidavit to which I have referred was sworn on 19 September 1997 and at that stage the summons for liberty to proceed was returnable on 22 September 1997 (a Monday).  I interpolate that on 22 September 1997 the Honourable Mr Justice de Jersey adjourned the summons for 3 months.

Miss Feeney swore a further affidavit on 23 January 1998.  In this later affidavit she referred to her earlier affidavit mentioning her telephone conversation with Dr Nicol.  She further swears that during that conversation she also advised Dr Nicol that the plaintiff’s medical record revealed that the plaintiff had undergone a micro urine test shortly before the urodynamic test and that Dr Nicol informed her and she verily believed that micro urine tests are undertaken prior to urodynamic tests in order to determine whether the patient is at risk of developing a urinary tract infection and that the plaintiff’s micro urine test indicated that he had sterile urine which in turn indicated that he did not require antibiotics.

In her later affidavit she has sworn that on 22 January 1998 she had a telephone conversation with the second defendant who informed her and she verily believed:-

(a)that in the hospital system outpatient clinics are arranged under the names of the consultants employed by the hospital, that the volume of patients and the time in which they are required to be seen in the public system do not permit the consultants to see and examine every patient who attends the clinic, that accordingly in order to ensure that all patients are attended to in a timely manner they are seen by registrars under the tutelage of the consultant and any questions or concerns with the registrars are discussed with the consultant.

(b)that Dr Heathcote’s name was on the plaintiff’s outpatients records because he was the consultant in charge of the clinic which the plaintiff attended.

(c)that he considers Drs Nicol and Cartmill to be very capable doctors and he feels confident to leave patients in the care of either of them. 

(d)that the fact that plaintiff suffered from urinary tract infections in the past was not relevant to whether he required an antibiotic for the urodynamic procedures because a micro urine test was performed on the plaintiff prior to the urodynamic test and that the micro urine test revealed the plaintiff had sterile urine and therefore was not at high risk of developing a urinary tract infection.

The essence of the plaintiff’s case against the defendant is that neither the second defendant nor the hospital doctors under his tutelage considered the plaintiff’s prior history with the Princess Alexandra Hospital to which I have referred in some detail, that that history showed a prior history of urinary tract infections, and that with that knowledge the second defendant and the hospital doctors were negligent in failing to have antibiotic cover administered before the urodynamics test was performed.  Plaintiff’s counsel also argued that the prior history appearing from the hospital records showed haematuria following cystoscopy and with that knowledge, the second defendant and the hospital doctors ought reasonably to have foreseen that haematuria might follow the urodynamics test and therefore should have administered antibiotic cover.

It is well settled that the applicant plaintiff bears the onus of showing me that there is good reason for exempting the present proceeding from the general prohibition which order 90 rule 9 imposes (William Crosby & Co v. The Commonwealth (1963) 109 CLR 490 at 496; Australian Broadcasting Commission v. Industrial Court of South Australia (1985) 159 CLR 536, Campbell v. United Transport (1966) Qd R 465 and Dempsey v. Dorber (1990) 1 Qd R 418 at 419).

In the present case there are a number of matters to be considered in deciding whether the plaintiff has discharged the onus which lies on him.

1.Explanation for the Delay.

The presence or absence of delay is not necessarily determinative but it is an important factor (Wilson v. Bynon (1984) 2 Qd R 82). In the present case the applicant’s solicitor in his affidavit of 28 August 1997 has sworn that “from 14 July 1994 to date” there have been settlement discussions. Miss Feeney challenges this statement swearing that there have 3 periods of settlement discussions covering periods of 2 months, one week and 2 months. Her affidavit given in response to the plaintiff’s solicitors affidavit is not challenged. I do not accept there have been settlement discussions for over 3 years.

The plaintiff in his own affidavit has said in effect that he had undertaken some investigative work challenging a report in the Prince Charles Hospital given in 1996 in relation to his heart condition.  The plaintiff, in what seems to me broad and general terms, attributes the delay of over 3 years to his fulltime shift work, his difficulty in finding legal costs “on a regular and continuous basis” and his continuing medical problem.

The explanations as to the delay are unsatisfactory.  However, they are matters which I do take into account and one of the circumstances of the case.

2.      Prejudice

It is now over 7 years since the urodynamics test was administered.  Each of the doctors said to have been apparently involved - Heathcote, Nicol and Cartmill has little or no recollection of the treatment and furthermore it seems that it will be extremely difficult if not impossible to identify now the technician who performed the urodynamics test.  Heathcote says he did not see the plaintiff before 16.12.90 - according to the medical records.

In my view the defendant, who bears an evidentiary onus of showing or pointing to some evidence of prejudice, has been able to do so in the present case.  As to the onus on the defendant see Campbell v. United Pacific Transport (1966) Qd R 565 and Borg v. Muscat (1972) Qd R 253.

The cases also show that prejudice can be assumed from the passage of a significant period of time (see Borg v. Muscat (supra) at page 256, Herron v. McGregor (1986) 6 NSWLR 246 at 254, Stollznow v. Calvert (1980) 2 NSWLR 754 at 745 and Kaats v. Caelers (1966) Qd R 482 at 493). I find that the period from December 1990 to late 1997 is, in the circumstances of this case a significant period of time.

In Brisbane South Health Regional Authority  v. Taylor (1996) 70 ALJR 866 at 870-1, McHugh J in his judgment in the High Court of Australia pointed to the need for actions to be commenced promptly and prosecuted promptly. He said:-

“For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims.  The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’ (R v. Lawrence [1982] AC 510 at 517 per Lord Hailsham of St Marylebone LC).

Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed.  Sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties.  Prejudice may exist without the parties or anybody else realising that it exist.  As the United States Supreme Court pointed out in Barker v. Wingo ((1972) 407 US 514 at 532) ‘what has been forgotten can rarely be shown’. So, it must often happen that important perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of known fact or circumstances because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but if the tribunal of fact had all the evidence concerning the matter an opposite result may have ensued. The longer the delay in commencing proceedings the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of accident arose.”

I should add that in my view Dempsey v. Dorber is of little assistance in the present case - in that case liability was not an issue and the matter was concerned only with the issue of damages.

In my view the delay since October 1990 is such that prejudice to the defendants can be readily inferred.  The prejudice is well illustrated by the lack of memory of the 3 doctors concerned to which I have referred and the inability to identify the person who performed the urodynamics test.  In addition to that prejudice, there is another aspect of prejudice to the defendants to which I now turn.  This case, in which no statement of claim was ever delivered before the three year period expired, well illustrates the need for plaintiffs to prosecute their claims diligently and promptly and stands as a warning for those who fail to do so. 

Here it seems, there were sporadic, rather short attempts by the plaintiff to settle with the defendants those attempts occurring without the plaintiff ever having formulated his claim in such a way that the basis of his claim in negligence could be readily and clearly seen - as should have been the case had a statement of claim been delivered when it should have - in July 1994

I have already mentioned the essence of the plaintiff’s claim in negligence, as it appears from the Statement of Claim very recently formulated. The vital test is the urodynamics test but it is now said that as a result of that test without antibiotic cover the plaintiff was infected with right pyelonephritis leading to inflammation of the right seminal duct, septic shock and ultimate right orchidectomy. The cause of such infection is not pleaded - from a reading of the Statement of Claim it seems the plaintiff says his prior history of urinary tract infections plus his prior history of haematuria after cystoscopy should have caused the defendants to provide antibiotic cover before the urodynamics test. After all this time, the plaintiff has no evidence to prove on the balance of the probabilities a causal nexus between the urodynamics test and subsequent alleged infection. At the end of the day if the action went to trial it may be a matter of inferences drawn from proven facts but in the present state of the case, given that the applicant seeks to discharge the burden O.90 R.9 casts on him I should, at the least have expected some evidence from an appropriate expert showing, that, on the balance of probabilities such a nexus existed. No such evidence has been forthcoming. The above quoted passages from Dr Keller’s report certainly do not provide that evidence.

In my view, to permit the case as presently pleaded to proceed is to impose further prejudice on the defendants.  If the plaintiff cannot by this time formulate his claim and furnish evidence, which if accepted is capable of proving his claim, I am in my view entitled to view that state of affairs as prejudicial to the defendants.

After considering all the circumstances I find that the plaintiff has failed to show good cause why he should be given liberty to proceed and I dismiss the application.