Lowther v Brisbane South Regional Health Authority and Heathcote
[1998] QCA 398
•1/12/1998
IN THE COURT OF APPEAL [1998] QCA 398 SUPREME COURT OF QUEENSLAND
Appeal No. 3184 of 1998
Brisbane
Before McPherson J.A.
Williams J.
Muir J.[Lowther v. Brisbane South Regional Health Authority & Anor]
BETWEEN:
RONALD CHARLES LOWTHER
(Plaintiff) Appellant
AND:
BRISBANE SOUTH REGIONAL HEALTH AUTHORITY
(First Defendant) First Respondent
AND:
PETER HEATHCOTE
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 1 December 1998
For the reasons given by Williams J. as well as those given by Muir J., I agree that this
appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.3184 of 1998
Brisbane
[Lowther v Brisbane South Regional Health Authority & Anor]BETWEEN:
RONALD CHARLES LOWTHER
(Plaintiff) Appellant
AND:
BRISBANE SOUTH REGIONAL HEALTH AUTHORITY
(First Defendant) First Respondent
AND:
PETER HEATHCOTE
(Second Defendant) Second Respondent McPherson JA
Williams J
Muir J
Judgment delivered 1 December 1998.
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPEAL DISMISSED WITH COSTS
CATCHWORDS:
PROCEDURE - leave to take fresh proceedings in the action - whether defendants likely to suffer prejudice - delay - medical negligence claim - particulars of negligence framed such that contemporaneous oral communications important - recollection of witnesses impaired due to effluxion of time - no adequate reason provided for delay.
Rules of the Supreme Court Order 90 rule 9.
Dempsey v Dorber [1990] 1 Qd R 418.
Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541.Counsel: Mr R Hanson QC for the appellant.
Mr P Keane QC, with him Mr P Freeburn, for the respondents.Solicitors: Stephens & Tozer for the appellant.
Minter Ellison for the respondents.Hearing Date: 11 November 1998 IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.3184 of 1998
Brisbane
Before McPherson JA
Williams J
Muir J[Lowther v Brisbane South Regional Health Authority & Anor]
BETWEEN:
RONALD CHARLES LOWTHER
(Plaintiff) Appellant
AND:
BRISBANE SOUTH REGIONAL HEALTH AUTHORITY
(First Defendant) First Respondent
AND:
PETER HEATHCOTE
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT -WILLIAMS J
Judgment delivered 1 December 1998
I have had the advantage of reading the reasons for judgment prepared by Muir J. I agree,
substantially for the reasons therein stated, that the appeal should be dismissed.
However because of the issues raised it is desirable that I set out the matters which have
primarily persuaded me that that is the proper outcome.
| 3 | The medical procedure in question was carried out on 12 December 1990. The writ was not issued until 26 November 1993 (a little over two weeks before the limitation period expired) |
but not served until 24 June 1994 (by which time the limitation period had expired). Thereafter the
appellant has not taken any step in the proceeding. Over seven years after the events giving rise to
the alleged cause of action a draft statement of claim was prepared at the direction of the chamber
judge hearing the application for leave to proceed under O.90 r.9. There are deficiencies in that
pleading, as pointed out in the judgment appealed from, and it is by no means certain that if the
action was allowed to proceed that would be the statement of claim on which the matter went to
trial.
There is no reasonable or satisfactory explanation for the inactivity of the appellant until late
1997. Much of the material relied on as affording an explanation for that delay is in no way relevant
to the real issues sought to be raised by the litigation. No explanation has been put forward for the
failure to deliver a statement of claim over such a lengthy period.
That in itself has seriously and irrevocably prejudiced each of the respondents. In broad
terms the respondents are aware, and perhaps have been aware for some time, that the alleged
negligence is based on the failure to administer antibiotics when carrying out the procedure on 12
December 1990. That was said by counsel for the appellant to a medical question which could be
answered by calling expert medical evidence. But it is not as simple as that. Before the failure to
administer antibiotics can be held to be negligent one needs to know much more about the
background to the medical procedure carried out on 12 December 1990.
The second respondent in December 1990 was a consultant urologist at the Princess
Alexandra Hospital. For present purposes it can be assumed that he was the doctor in charge of
the Urology Outpatients Department at the Princess Alexandra Hospital. Because he was in charge of that Department his name appeared on the appellant's medical records, but he has no personal
recollection of dealing with the appellant leading up to the procedure performed on 12 December
1990. There is nothing in the existing medical records of any such consultation. Further, and more
importantly, it is not alleged by the appellant in the draft statement of claim that there was some
specific consultation with the second respondent on or shortly before 12 December 1990. There
is a notation in the medical records that the appellant was seen by Dr Nichol, the then Urology
Registrar, on 29 October 1990.
The following matters of relevance are simply not addressed by the appellant in the draft
statement of claim, and each is of critical importance so far as the liability of either or both of the
respondents is concerned:
(i) Did the appellant speak to the second respondent leading up to or
at the time of the medical procedure on 12 December 1990 being
performed?
(ii) If so, what medical history was provided; did the second respondent then
have the appellant's medical records from the first respondent? What
history did the appellant provide orally?
(iii) Was a micro-urine test carried out shortly before the procedure on
12 December 1990? If so, what was the result of that test? If the
urine was sterile, was that relevant to the question whether an
antibiotic should be administered?
(iv) If the appellant was not seen by the second respondent, what
doctor or doctors did he speak to shortly prior to the test performed on 12 December 1990? What medical history, if any,
was provided to that doctor? Did that doctor know of the
appellant's medical history, in particular his heart condition and
previous urinary tract infections?
(v) Who was the medical technician who carried out the test
procedure on 12 December 1990?
(vi) Who was the medical practitioner whose responsibility it was to
decide whether or not the appellant required an antibiotic in
association with carrying out the test on 12 December 1990?
What decision did that medical practitioner reach? What were the
reasons, if any, for reaching the conclusion that the appellant did
not require antibiotics?
(vii) What advice or warnings were given to the appellant by the second
respondent or other medical practitioner prior to his undergoing
the tests on 12 December 1990?
There is apparently no simple answer to the question, was the failure to administer an
antibiotic in the circumstances negligent? The appellant's own material suggests that neither of his
pre-existing conditions necessarily required the administration of an antibiotic before carrying out
the procedure in question. Included in his material are extracts from medical writings dealing with
the circumstances in which an antibiotic should be administered given his heart condition. An extract
from a medical publications appears at page 39 of the record dealing with the circumstances in
which antibiotics should be administered to patients with the appellant's heart condition. There is a reference to "urethral catheterization and/or urinary tract surgery" and it is stated that antibiotics
should be used "if infection present". In other words there is support in the medical literature for the
proposition that the appellant's heart condition did not necessarily require the administration of an
antibiotic. There is some evidence that no infection was present at the time the procedure was
carried out, and in consequence (if those facts be established) there may well be no negligence in
failing to administer the drug.
Muir J has quoted in his reasons the opinion of Dr Keller, that even "if there had been a
history of urinary tract infections then one would consider but not necessarily advise an antibiotic
cover". Again that indicates that this is not a simple black and white issue. In order to determine
whether the failure to administer the drug was negligent one needs to know a lot more about what
occurred on and shortly before 12 December 1990. As this is not a case where one can simply say
that the failure to administer the drug was evidence of negligence, it was of critical importance for
the appellant to articulate his case at a time when it was reasonably possible for the respondents to
make appropriate enquiries as to the decision taken, who made it, and the reasons for it. The
conduct of the appellant has denied that opportunity to the respondents.
Put another way, it is not sufficient for the appellant to establish a causal connection between
the procedure formed on 12 December 1990 and his subsequent condition. Whether or not
negligence on the part of either or both the respondents was a cause of his subsequent condition is
a question which cannot now be properly addressed because of the inordinate time which has
elapsed since the critical events in question.
The second respondent in particular is placed in a seriously disadvantaged position. There
are no relevant notes under his hand and he has only the vaguest of recollections of the relevant
event. The fact that he was involved in the treatment of the plaintiff after 12 December 1990 is not
to the point.
I agree that the appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3184 of 1998
Brisbane
Before McPherson J.A.
Williams J.
Muir J.[Lowther v. Brisbane South Regional Health Authority & Anor]
BETWEEN:
RONALD CHARLES LOWTHER
(Plaintiff) Appellant
AND:
BRISBANE SOUTH REGIONAL HEALTH AUTHORITY
(First Defendant) First Respondent
AND:
PETER HEATHCOTE
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - MUIR J
Judgment delivered 1 December 1998
This is an appeal against an order by which, in the exercise of his discretion, the learned
primary judge dismissed an application by the plaintiff/appellant under O 90 r 9 of the Rules of the
Supreme Court for leave to take fresh proceedings in the action.
The nature of the action
The appellant's case is disclosed in a draft statement of claim prepared for the purposes
of the application. In broad outline, the relevant allegations are as follows.
The plaintiff had what is described as a “floppy” heart valve which made it advisable that he take antibiotics for all procedures involving infections so as to avoid the risk of endocarditis. The plaintiff also had a past history of renal infections and on two occasions in the past had succumbed to urinary tract infections after medical procedures (cystoscopies in September 1975 and January 1987).
The second defendant/respondent, a specialist urologist, was an employee of the first respondent and the plaintiff had been referred to him by another specialist in urology.
On 12 December 1990 a technician employed by the first defendant/respondent hospital performed a urodynamics test on the appellant without accompanying antibiotic treatment. As a result of the test, the appellant sustained an infection which led, ultimately, to a right orchidectomy.
The first respondent was negligent in -
(a) permitting the urodynamics test to take place without protecting the appellant from infection by antibiotics or other appropriate drugs;
(b) failing to take into account the appellant's floppy valve which predisposed him to blood disorders; and
(c) failing to advise the second respondent of all historical matters relevant to the treatment which the appellant ought have.
The second respondent was negligent in that he -
(a) failed to properly acquaint himself with the full medical history of the appellant;
(b) failed to properly supervise the urodynamics test;
(c) failed to take into account the plaintiff's floppy valve condition; and
(d) failed to cause the urodynamics test to be carried out under the protection of
antibiotics or other appropriates drug with a view to preventing infection.
The history of the action
The action was commenced within time (by about 3 months) on 26 September 1993.
The last step in the action prior to the application before the learned primary judge was the filing of
an entry of appearance by both respondents on 27 June 1994. As already noted, the summons was
filed on 28 August 1997. It came before another judge in chambers on 22 September 1997 and
was adjourned for three months in order to give the appellant the opportunity of filing material
sufficient to establish a prima facie case. The appellant had sworn to a belief that he “should
conclude my investigative work in about 2 or 3 months to enable me to proceed with my action”.
The matter came before the learned primary judge on 22 September 1997. After hearing argument he concluded that he could not be certain of the basis of the appellant's claims of negligence and
directed that a draft statement of claim be delivered on or before 12 January 1998. That was done
and the further hearing which led to the judgment under appeal took place on 23 January 1998.
Principles to be applied on an application under O 90 o r 9
An application for leave from the general prohibition on the taking of fresh proceedings
must “show that there is good reason for excepting the particular proceedings from the general
prohibition” on the taking of a fresh proceeding without the order of a court or a judge: William
Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490 at 496. Matters relevant to the
determination of this question are -
(a) whether there is a reasonable excuse for the delay; and
(b) whether the defendant is likely to suffer prejudice as a result of the delay.
“The proper approach to a question such as this is to identify the relevant factors, assess
the weight to be given in the circumstances of the case to each of them, and then to determine
whether, on balance, there is good reason for making the order”: Dempsey v. Dorber [1990] 1 Qd
R 418 at 419 per Connolly J, with whose reasons Carter and Moynihan JJ agreed.
It is also relevant to bear in mind that the appeal is against an exercise of a discretion.
As such, it is not sufficient for the appellant to show that the judges composing the appellate court
would have been disposed to take a different course to that taken by the primary judge. Some error
affecting the exercise of the discretion must be shown: House v. The King (1936) 55 CLR 499 at
504-5 and Gronow v. Gronow (1979) 144 CLR 513 at 534-5. The grounds of appeal
On the hearing of the appeal, Mr Hanson QC, who appeared for the appellant, argued
that the exercise of the discretion by the primary judge miscarried: in the manner in which the judge dealt with the issue of prejudice; in the criticism by the judge of the formulation of the appellant's
case and in the judge's criticism of the evidence (or lack thereof) supporting the appellant's case.
Each of these matters is inter-related. The criticisms of the formulation by the appellant of his case
in the draft statement of claim and of the appellant's evidence are contained in that part of the
reasons which deals with prejudice to the respondents should the application succeed.
The issue of prejudice
The aspects of prejudice on which the primary judge based his refusal to give leave were
-
1. Prejudice to be inferred from the lapse of time between the alleged acts of negligence
in October 1990 and the date of hearing of the application. His Honour observed that
this aspect of prejudice was illustrated by “... the lack of memory of the 3 doctors
concerned ... and the inability to identify the person who performed the urodynamics
test”.
2. A perceived failure on the part of the appellant to properly plead his case.
3. A failure by the appellant to provide expert evidence of a nexus between the
urodynamics procedure and the appellant's infection.
Mr Hanson's ground 1 related principally to the first of these matters.
The first ground - prejudice resulting from effluxion of time
In support of this ground, Mr Hanson QC pointed to letters containing some details of
the appellant's complaint sent by the appellant's solicitors to the first respondent and also its
solicitors within the limitation period and to the existence of settlement negotiations prior to the issue
of the writ. The letter to the first respondent of 16 June 1993 alleged or referred to -
(i) negligence on behalf of the first respondent;
(ii) the referral by Dr Holmes to the second respondent;
(iii) the carrying of the ultra urodynamic test on 15 December 1990 and the ensuing
symptoms;
(iv) that the appellant having been informed by a hospital employee that the infection was
caused by the test;
(v) a discussion between the second respondent and the appellant in relation to the causes
of the infection.
A letter of 6 July 1993 from the solicitors for the appellant to the solicitors for the first
respondent covered generally similar ground and referred, in addition, to the appellant's floppy heart
valve condition and the alleged necessity for the administering of penicillin in the case of medical
procedures affecting the blood stream. A copy of a letter from Dr Holmes to the second respondent
dated 11 October 1990 was enclosed. It made reference to the appellant's “floppy valve” condition.
The settlement negotiations were described in an affidavit by an employee of the respondent's
solicitors as “without prejudice discussions” held from July 1993 until about September 1993.
Those discussions culminated in a settlement conference between solicitors attended by the
appellant on 20 August 1993. The deponent swears that further “without prejudice” discussions
took place between 17 October 1995 and 8 December 1995.
It was submitted that the foregoing shows that, at quite an early stage, the respondents
were alerted to the appellant's claim as well much of the detail of his complaint and can have been
expected to have gathered relevant information and ensured relevant documents were kept in
existence. It was further submitted that the case largely involves expert medical opinion based on
records rather than the recollection of witnesses.Mr Keane QC, who appeared with Mr Freeburn for the respondents, submitted that the
particulars of negligence in the draft statement of claim demonstrated that the case was far from
being based on uncontested primary facts. The first two particulars of the negligence of the first
defendant are -
“(a) Failing to advise the second defendant of all historical matters relevant
to plaintiff.
(b) Failing to ensure that proper consideration was given to peculiarities of plaintiff in determining whether procedures with or without modification should be performed on plaintiff.”
Particulars of negligence of the second respondent included -
“(a) Failing to acquaint himself with the full history of plaintiff.”
(b) Failing to properly supervise care and any procedures to be performed upon plaintiff. (c) Failing to make proper recommendations regarding urodynamics procedure on the plaintiff in the light of plaintiff's peculiarities as known to him.
...
(e) failing to take into account that plaintiff's floppy valve in heart further predisposed him to blood stream disorder.”
It is apparent that all of these matters are ones which involve witnesses' recollections to
a greater or lesser degree. When regard is had to the evidence that the second respondent was not
the only medical practitioner who may have been involved in the relevant procedure and that the
procedure itself was carried out by a technician or technicians it becomes even more apparent that
the case is one in which contemporaneous oral communications have the potential to play an
important role.
It was sworn, on information and belief, on the respondents' behalf at first instance that
-
a. the second respondent “had only very limited independent recollection of his treatment
of the plaintiff ... (and) little, if any, independent recollection of the plaintiff's medical
treatment.”;
b. consultants such as the second respondent, owing to pressure of work, do not see every
patient who attends at the first respondent's clinic;
c. many patients are attended to by registrars and “questions of concerns of the registrars
are discussed with the consultants” such as the second respondent;
d. a micro urine test performed on the appellant revealed that the appellant had sterile urine
“and, therefore, was not at a high risk of developing a urinary tract infection”.
In Brisbane Regional Health Authority v. Taylor (1996) 186 CLR 541, McHugh J,
in addressing the exercise of a discretion to extend the time in which to commence an action under
s 31 of the Limitation of Actions Act 1974, made some observations on the prejudice resulting
from delay which are of some general relevance for present purposes. At 551 his Honour said -
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. 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. But 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 exists. 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 a known fact or circumstance 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.”
At 556 his Honour said -
“In the ordinary course of events, it is probable that the plaintiff discussed her operation and the reasons for it with various people - friends, relatives and perhaps even the nursing staff. If Dr Chang's notes are accurate and the action had been commenced within the limitation period, one or more persons in this group may have been able to provide evidence or information favourable to the defendant. By the time the application for extension was made, it is likely that such conversations, if they took place, would be no longer within the memory of the participants. The finding of actual prejudice and the possibility of other prejudice to the defendant gave the defendant a strong - in my view overpowering - case for resisting the application.”
I will defer further consideration of this ground until after consideration of the other grounds.
The second ground - criticism of the formulation of the appellant's case.
The passage in the reasons to which the appellant's complaint was directed is as follows
-
“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 that 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 of O 90 r 9 seeks to discharge the burden O 90 r 9 casts on him I should, at the least have expected some evidence from appropriate experts 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.”
It is submitted on behalf of the appellant that the formulation of the case in the draft
statement of claim is adequate and that the requisite causal connection may be established by the
temporal proximity between procedure and infection.
The draft statement of claim sufficiently, in my view, pleads the cause of the appellant's
infection. It sets up a past history of infections known to the first respondent, the appellant's floppy
heart valve condition, and the need on the part of the respondents to be aware of matters relevant
to the appellant's treatment and to treat him accordingly. It then pleads the test, the failure to provide
antibiotics in conjunction with the test and alleges -
“As a result of such urodynamics test without antibiotic cover plaintiff was infected with right pyelonephritis leading to inflammation of the right seminal duct, septic shock and ultimate right orchidectomy.”
The learned primary judge appears to have had it in mind that the appellant was obliged
to plead or particularise the pathological explanation for the onset of infection. Whilst I accept that
the pleading could have been more effectively framed, it plainly enough alleged a case of a
heightened risk of infection arising from the urodynamics procedure which needed to be guarded
against by provision of antibiotics.
His Honour was no doubt minded to take a strict approach to the draft pleading because
of the abundant opportunity given to the appellant to produce a sustainable pleading. However, in my view, his Honour's approach, although understandable in the circumstances, was unduly strict.
The draft pleading is adequate in relevant respects. Even if it was deficient in the manner
suggested by the primary judge, I doubt that such deficiency would have resulted in material
prejudice to the respondents. The case sought to be made out was plain enough. Whether the
appellant could make it out was a matter to be determined on trial. In my view, it follows that there
was an error in part of the primary judge's reasons which bore directly on the exercise of his
discretion.
The third ground - criticism of the evidence supporting the appellant's case
This ground is closely connected with the previous one and relates solely to the implicit
finding of inadequate evidence of the causal connection between the urodynamics test and the onset
of infection. The findings the subject of this criticism are also contained in the passage from the
reasons quoted in paragraph 18 above. His Honour's focus on this aspect of the appellant's claim
was probably a result of the expert evidence provided by the appellant. Included in the appellant's
affidavit evidence was a report of a Dr Keller, consultant urologist, paragraph 3 of which stated -
“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.” (emphasis added)
| 25 | In the light of that evidence, the last sentence in the passage from the reasons quoted above is hardly surprising. The essence of the point made in this regard on the appellant’s behalf is |
that, although the expert opinion evidence may have been counter-productive, sufficient evidence
for the purposes of the application was to be found in the temporal proximity between the carrying
out of the procedure and the onset of infection.
It would not be correct in principle for a court to impose a requirement on an applicant
under O 90 r 9 that the applicant show “there is evidence to establish the right of action” (c.f. s.
31(2) of the Limitation of Actions Act 1974). However, his Honour does not appear to me to be
stating a general proposition that an applicant, to succeed on an application under O 90 r 9, must
“furnish evidence which, if accepted, is capable of proving his claim”. He appears to be saying that,
in the circumstances of this case and having regard to the strictures of McHugh J in Brisbane South
Regional Authority v. Taylor (supra), the applicant must adduce more cogent evidence than might
normally suffice. The existence of an arguable case on the applicant’s part is a relevant
consideration. His Honour's reference to the inadequacy of the appellant's evidence is directed to
the lack of expert evidence on the aspect of causation. In my view, the evidence is strong enough
to establish a prima facie case that the infection arose as a result of the urodynamics test. The
inference may be drawn that appropriate medication would have prevented the onset of the
infection. Where the appellant’s evidence is weak is in demonstrating that a failure to administer
antibiotics (if such failure existed) was negligent in the circumstances.
There is nothing on the material which suggests to me that effluxion of time has made it
impossible or even significantly more difficult for experts to give informed and properly based
opinions as to the cause of the appellant's infection. But I acknowledge that, through effluxion of
time, information which may have been relevant to the formation of such opinions may have been
lost.
ConclusionAs the appellant identified material errors affecting the exercise of the primary judge’s
discretion, it is necessary for the discretion to be exercised afresh by this Court. A central question
is whether delay through effluxion of time, coupled with the considerations relied on by the
respondents' counsel, give rise to sufficient prejudice to the likelihood of a fair trial as to warrant
depriving the appellant of his right of action.
The first respondent is in a stronger position than the second. In relation to the latter, it
may be that a registrar had primary responsibility for the treatment of the appellant and made or
omitted to make relevant decisions without reference to the second respondent. Even in the case
of the first respondent, it is difficult to resist the conclusion that through effluxion of time (now some
8 years) it has become very difficult to ensure a fair trial of issues such as -
(a) whether all relevant records of the first respondent relating to the appellant were brought
to the attention of the second respondent and/or a registrar;
(b) the consideration, if any, given to the appellant's prior history in determining his treatment;
and
(c) whether there was something about the appellant's physical condition or health at the time
of treatment which had a relevant bearing on the treatment given or omitted to be given.
The appellant, in my view, gives no satisfactory explanation for the lengthy delay in this
matter. He swore in August 1997 -
“I have undertaken major investigative work including liaising with politicians to contest the report I have received from the Prince Charles Hospital. To date, I have not concluded my investigations but have made significant progress in establishing I had a heart condition.”
The report from Dr Holmes, to which I referred earlier, plainly states the nature of the
appellant's heart condition. The appellant's efforts thus appear to have been misdirected. When the
investigations were carried out is unclear. Other reasons advanced for the delay are -
(a) The appellant was engaged in shift work.
(b) The appellant has had difficulty in paying legal costs.
(c) The appellant suffers “medical problems in relation to (his) bladder and the effects of (his)
orchidectomy”.
In the appellant's favour is the fact that a reasonably particularised notice of the proposed
claim was given in correspondence prior to the expiration of the limitation period. That, coupled with
the existence of reasonably extensive medical records, assist in limiting the adverse consequences
of effluxion of time. In the end result though, I have concluded, as did the learned primary judge,
that the prejudice to the respondents through likely loss of critical recollections outweigh these and
other considerations in the appellant's favour.
I would dismiss the appeal with costs.
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