MacDonnell v Rolley

[2000] QSC 58

SUPREME COURT OF QUEENSLAND

CITATION:	MacDonnell v Rolley & Ors [2000] QSC 058
PARTIES:	SUZANNE MACDONNELL v JOHN ROLLEY (First Defendant) ROBERT ALEXANDER GARDINER (Second Defendant) THE BRISBANE NORTH REGION THE WOMEN’S HEALTH SECTOR formerly THE ROYAL WOMEN’S HOSPITAL SERVICES (Third Defendant)
FILE NO/S:	9901 of 1996
DIVISION:	Trial Division
DELIVERED ON:	21 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	29 February 2000
JUDGE:	Byrne J
CATCHWORDS:	PRACTICE – leave to proceed and renewal of writs – rr 389(2) and 24(2) Uniform Civil Procedure Rules 1999.
COUNSEL:	Mr P R Dutney QC, with him Mr Williams for the applicant/plaintiff Ms J H Dalton for the respondent/defendant
SOLICITORS:	Robert Bax & Associates for the applicant/plaintiff Minter Ellison for the respondent/defendant

1. On 26 November 1996 the plaintiff caused a writ to issue claiming against John Rolley, a gynaecologist, damages for negligence. The plaintiff now applies, pursuant to UCPR 389(2), for an order allowing her to seek renewal of the writ under r 24(2) so that it can be served on Dr Rolley. Shortly stated, her case is that the writ should be renewed and, accordingly, that there is good reason to except these proceedings from the general prohibition imposed by r 389(2) on the taking of a step where three years has elapsed since the last step was taken.

2. In August 1993 the plaintiff consulted Dr Rolley in connection with urinary incontinence. The condition was, it seems, associated with a prolapsed uterus. The plaintiff deposes that Dr Rolley mentioned two options to treat her symptoms: hysterectomy, and Manchester repair.[1] The plaintiff claims that she told Dr Rolley that she did not want the hysterectomy, and that he said something like, “Well that’s easy. I can do a Manchester repair”. She maintains that he told her that such an operation “was a piece of cake”, and that he had done “hundreds of them before” with “never a problem”. Repair of the bowel was also to be undertaken.

   [1]           Anterior colporrhaphy, amputation of the cervix, plication of the cervical ligaments, posterior colpoperineorrhaphy, and dilation of the cervix.

3. On 10 December 1993 the plaintiff submitted to surgery. In a comprehensive report to her general practitioner, Dr Brooke, seven days later, Dr Rolley describes the surgery as involving “a routine Manchester repair” with “minimal blood loss” and “no technical difficulties”. Nonetheless, post-operatively there was minimal drainage from the bladder by an indwelling urethral catheter. Dr Rolley discussed the problem with the urologist, Dr Gardiner. Investigation revealed bilaterally blocked ureters. A laparotomy enabled the points of blockage to be corrected. The ureters were re-implanted into the bladder surgically. The immediate post-operative course was uneventful.

4. Afterwards, the plaintiff experienced bladder irritability. She also suffered several infections. Her life changed “dramatically”. She became depressed. She was, however, in regular attendance upon Dr Brooke, who encouraged her to seek legal advice in connection with litigation against Dr Rolley, presumably because the ureters had been blocked, by sutures it seems, during surgery. Dr Brooke considered that that complication resulted from the particular way in which Dr Rolley had performed the Manchester repair. Perhaps he also thought that the plaintiff’s on-going physical problems were attributable to that surgery, although the evidence does not show why Dr Brooke was exhorting the plaintiff to see a solicitor about Dr Rolley’s intervention.

5. Not until August 1996 did the plaintiff see a solicitor. A partial explanation for her reticence to consult a lawyer was her perception that it was “very difficult to enter into litigation with the medical profession”. Her father had told her that doctors never give evidence against each other, never settle, and always fight to the end with unlimited funds. She also attributes her hesitation to her deep depression and a related unwillingness to contemplate litigation. Still, after the plaintiff saw a solicitor, she soon put him in funds to issue a writ. But she remained concerned about “considerable legal costs”.

6. Although she could have afforded the small cost of arranging for service of the writ, she was reluctant to proceed to service. A combination of factors accounts for this: pessimism fuelled by rumour about the nature of litigation against a medical practitioner; depression, and an associated reluctance to contemplate the burden of running a court case; and, eventually, advice from a retired urologist who, working without fee, provided a discouraging assessment of the prospects of successfully suing Dr Rolley.[2]

   [2]           According to the solicitor, the urologist thought that “tying off of ureters” was a known complication of the type of operation the plaintiff had undergone.

7. Things changed for the plaintiff in 1998 when she began to reduce her dependence on alcohol, “started to get my life back in order”, and prepared herself to confront the litigation. In June that year, her solicitor sought advice from Dr Newlands, a gynaecologist. His report, however, was not made available until mid-June 1999, after the plaintiff put her solicitor in funds to pay for it. Dr Newlands considers that although it is difficult to “blame the repair or its complication for the urinary symptoms” the plaintiff experienced in and about 1995, nonetheless the blockage of the ureters during a Manchester repair indicated “surgical skill and/or care below that which is acceptable”. Encouraged by this, the plaintiff now wants to pursue two alleged causes of action against Dr Rolley.

8. One such cause of action concerns the surgery itself: in particular, the ureter blockages. This claim is founded on Dr Newlands’ impression that those blockages bespeak a departure from the standard of care to have been expected of a gynaecologist. The other is based upon a contention that Dr Rolley did not warn the plaintiff that blocked ureters might result from the recommended surgery, which is coupled with a contention that the plaintiff would have sought another opinion and may not have undergone the operation if the possibility of such a complication had been drawn to her attention.

9. There could not be good reason to accede to the application for leave to proceed unless a consequential application to renew the writ was at least quite likely to succeed. In this case, if such a renewal were to be granted it could not be on the footing that reasonable efforts had been made to serve Dr Rolley, for no attempt was made to serve him; and it is not suggested that there were grounds to anticipate difficulties in his service. Pursuant to UCPR 24(2), therefore, unless “there is another good reason to renew the claim”, the registrar would be obliged to decline to renew the writ.

10. If the writ should not be renewed, the application for leave to proceed must fail. On the other hand, if the writ should be renewed, it is difficult to conceive of a basis for declining to permit the plaintiff to proceed to service. For, in general, the question whether there is “good reason to renew” an originating proceeding under r 24(2) raises for consideration matters analogous to those to be examined when an applicant attempts to demonstrate that leave to proceed should be granted despite the expiration of three years since the last step was taken.[3]

    [3]           cf Traj v The Cannery Board [1990] 1 Qd R 494, 496; Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 par 29; Hong Kong Bank (Trustee) Singapore Limited & Ors v Browne & Edwards & Ors, 404 of 1987, de Jersey J, 12 June 1991, p 6.

11. If the writ is not renewed, the plaintiff will never take to trial her claims against Dr Rolley: the claims would be statute-barred in new proceedings. Of itself, that does not mean that there is good reason for excepting the proceedings from the general prohibition established by r 389(2).[4] Nor is the mere fact of the expiration of the limitation period a sufficient basis for concluding that the application ought to be refused.[5] However, since the discussion by McHugh J in Brisbane South Regional Health Authority v Taylor[6] of the policy considerations underpinning limitation statutes, the tendency has been to accord greater significance to the prejudice[7] a defendant commonly sustains by continued exposure to the threat of litigation after the expiration of the limitation period and the risks to a fair trial that ordinarily may be presumed[8] to be associated with the passage of time.

    [4]         Muirhead v The Uniting Church in Australia Property Trust par 13.

    [5]           Finlay v Littler [1992] 2 VR 181, 186-187.

    [6] (1996) 186 CLR 541, Dawson J concurring.

    [7]           See Cooper v Hopgood & Ganim [1999] 2 Qd R 113, 124; Muirhead v The Uniting Church par 29.

    [8]           Smith & Anor v Harvey-Sutton [1998] QCA 232, 21 August 1998; Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158, 2 September 1999, par 45.

12. The plaintiff has always had the means to pay for service of the writ. She has chosen not to expend the $50 or less to do so, preferring to leave the litigation in suspension while she pondered whether to prosecute it. Speaking generally, such calculated inactivity is not to be encouraged. It is not for a party to decide whether there should be effectively a stay of proceedings. And “it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served”.[9]

    [9]           Ramsay v Madgwicks (A firm) [1989] VR 1, 5 per Young CJ (Kaye and Southwell JJ concurring); see also Brealey v Board of Management Royal Perth Hospital, par 15, 45.

13. Considerations that influenced the plaintiff not to prosecute the litigation promptly – pessimism about the outcome, uninformed family apprehensions about the difficulties plaintiffs confront in medical malpractice suits, and an incapacity to find, or an unwillingness to commit, the funds necessary to prosecute the case promptly after service – are not shown to be attributable in any way to the surgery. In these circumstances, it is difficult to regard the explanation for the delay as satisfactory. But the absence of a satisfactory explanation is not necessarily fatal. Other factors fall to be assessed, material prejudice being prominent among them.

14. It is not easy to form a view about the extent to which the chances of a fair trial have been jeopardised by the delay. There is no suggestion that notes of consultations or treatment are missing or destroyed. Indeed, the only material touching upon prejudice to Dr Rolley relates to the failure-to-warn case. A solicitor deposes that Dr Rolley cannot recall the content of any warnings he may have given before the surgery. By this, the solicitor means, it seems, that he does not have an actual recollection of his discussions with the plaintiff. That is because the solicitor proceeds to say that the only that the only evidence Dr Rolley could give in relation to the failure-to-warn case is “evidence of his general practice in relation to warning patients before surgery”. It is not actually said that Dr Rolley does not remember the content of warnings he customarily gave in 1993 about such things or that his capacity to defend this failure-to-warn case is less than it would have been in December 1993 when the cause of action accrued.[10] Still, what Connolly J called in Dempsey v Dauber[11] “the inevitable blurring of recollection” over a long period is often a relevant species of prejudice.

    [10]          In forming a view about prejudice to the defendant, it is appropriate to contrast the present state of affairs with that which obtained when the cause of action accrued: Hoy v McCormack & Honan [1997] QCA 250, 19 August 1997; Tyson v Morgan [1998] QSC 90; [2000] 1 Qd R 100, 104-105.

    [11] [1990] 1 Qd R 418, 421.

15. In any conflict concerning the conversations between doctor and patient, there must be a chance that Dr Rolley will be the more disadvantaged by the delay. Typically, a patient might be expected to better recall a conversation which has special meaning for her – such as one about invasive surgery - than a medical specialist trying to remember what from his perspective was a routine matter. Here, in view of the significance which the plaintiff’s case attaches to the content of the consultation conversation,[12] it looks as though the accounts of the plaintiff and Dr Rolley concerning the consultation(s) could matter. Perhaps Dr Rolley’s prospects of being accepted have been diminished by the delay. Although it is not possible to be sure that such prejudice may materialize, there seems an appreciable risk of it.

    [12]          See para 2 above.

16. As has been said, there are several factors to be evaluated. On one side of the scale is the hardship[13] to the plaintiff which will attend refusal of the application. On the other hand, the prejudice she will sustain through the expiration of the limitation period might be thought to be self-inflicted.[14] To be weighed in the balance too are these things: the considerable, deliberate delay when service might have been effected at little cost; the absence of any notice of the claim to Dr Rolley or to any insurer of his – something which could have alerted Dr Rolley to the need to record recollections and to gather or preserve evidence; and the chance that the delay has prejudiced Dr Rolley’s prospects of defending the suit in respect of the failure-to- warn case.

[17]

It was not suggested that the negligent performance of the surgery aspect should be permitted to proceed if the failure-to-warn case cannot.

[18]

On balance, the plaintiff has not demonstrated good reason for excepting these [13]          If, as Dr Newlands seems to think, the post-operative symptoms are not referable to the ureter blockages, the value of the claim would not be great. [14]          Cf Van Leer Australia Pty Ltd v Palace Shipping KK & Anor (1979) 180 CLR 337, 351; Brealey v Board of Management Royal Perth Hospital par 60. proceedings from the general prohibition which r 389(2) imposes.

1. The application has been argued on the tacit assumption that an application to renew the writ would be a “step” that requires leave under r 389(2). The correctness of the assumption may be doubted.[15] However that may be, as the application for leave to proceed raises considerations analogous to those that would arise under r 24,[16] and as the plaintiff has asked that I deal with her application to renew the writ, it seems appropriate to refuse both leave to proceed and renewal of the writ.

   [15]          cf Rideout v Glaxo Group Limited [1996] 1 Qd R 200, 206-207.

   [16]          See par 10.

2. The application is dismissed.