Maddox v Faull
[2004] TASSC 41
•7 May 2004
[2004] TASSC 41
CITATION: Maddox v Faull & Anor [2004] TASSC 41
PARTIES: MADDOX, Robert Leslie
v
DOCTOR JACQUELINE FAULL
THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 246/2003
DELIVERED ON: 7 May 2004
DELIVERED AT: Hobart
HEARING DATES: 13 October 2003, 11 March 2004 and 3 May 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of actions – Extension of time – Considerations – Arguable case – Length of delay – Explanation for delay – Prejudice – Exercise of discretion.
Hill v Iluka Corporation Ltd [2002] TASSC 113 applied.
Limitation Act 1974 (Tas) s5(3).
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: J Crotty
Defendants: P Turner
Solicitors:
Plaintiff: James Crotty
Defendants: Director of Public Prosecutions
Judgment Number: [2004] TASSC 41
Number of Paragraphs: 15
Serial No 41/2004
File No 246/2003
ROBERT LESLIE MADDOX v DR JAQUELINE FAULL
and THE STATE OF TASMANIA
REASONS FOR DECISION MASTER S J HOLT
7 May 2004
This is an application under the Limitation Act 1974, s5(3), for an extension of time for the bringing of an action in negligence for damages for personal injury. The Act, s5(1), imposes a primary limitation period of three years, but s5(3) confers upon the court a discretion to extend that period for up to a further three years if “in all the circumstances of the case it is just and reasonable so to do”. The events about which the plaintiff complains occurred in June 1999, but it is not disclosed when the injury is claimed to have been suffered. The writ issued on 16 May 2003, and the application was filed on 30 September 2003. The hearing of the application commenced on 13 October 2003, but was interrupted by two lengthy adjournments whilst the plaintiff’s advisors sought out satisfactory medical evidence to support the application.
In Hill v Iluka Corporation Ltd [2002] TASSC 113 at par23, the Full Court said that in considering such an application “regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant”.
The plaintiff’s action is against a doctor at the Royal Hobart Hospital and the State of Tasmania as the entity responsible for the day-to-day operations of the hospital. The plaintiff’s affidavit evidence as to the existence of an arguable case was as follows. On 22 June 1999, he attended the Emergency Medicine Department at the hospital with an injury to his left wrist, considerable swelling and complaining of extreme pain. An x-ray was ordered and reviewed. Thereafter the plaintiff was advised by the doctor that there were no broken bones and that he should keep his left arm elevated in a sling and take paracetamol for the pain whilst the injury healed. Because of the level of pain he was suffering the plaintiff was not convinced that there was no break and asked the doctor to obtain a second opinion. A few minutes later a nurse returned and confirmed that nothing was broken and said that the pain was due to the swelling and bruising and that the appropriate treatment was rest. The plaintiff says he put up with the pain and kept his arm in a sling for about six weeks, but throughout this time his wrist remained painful and swollen. Over the next few months the swelling and the pain level gradually subsided. The pain become sporadic rather than constant, but the plaintiff continued to take pain relief tablets in large doses on a daily basis. In May 2000 he became concerned that the pain had persisted for such a long period of time and so he visited Dr Pickering, a general medical practitioner at New Norfolk. An x-ray was ordered and when the plaintiff returned to see Dr Pickering a few days later on 2 June 2000 he was told he had a fractured scaphoid. In July 2000 surgery was performed and the plaintiff’s left arm was placed in plaster which remained there until November 2000. In March 2001 the plaintiff was still experiencing pain and a further x-ray revealed that the fractured bone had not properly united. Further surgery was recommended. In October 2001 a bone graft was performed and the plaintiff’s left arm was again placed in plaster. The plaster was removed in December 2001 and an x-ray revealed that there was still non-union of the fracture. In February 2002 the plaintiff was advised that satisfactory union may never be achieved. The pain and the consumption of the pain killing medication continued. A third surgical procedure was recommended in October 2002, but it is yet to be undertaken.
Under cross-examination the plaintiff revealed some further detail. He said that he had been at work as a security guard at the Tasmanian Inn in Campbell Street, Hobart, until about 2 am or 2.30 am on the morning of 22 June 1999. When he finished work he commenced walking to another hotel, the Goodwoman Inn. In the course of his journey between the two hotels he had an altercation with a person in Warwick Street whom he punched several times, resulting in the injury to his wrist. He admitted that initially he may have told the nurse at the hospital that he injured his wrist in a fall. Later after being advised that what he told the doctor would not be reported to the police by the hospital he admitted that he had injured his wrist in the course of punching someone in the early hours of that morning. The plaintiff told the doctor that he thought his wrist was broken. He agreed that several x-rays were taken from different positions. The doctor returned to discuss the x-ray results with the plaintiff. The plaintiff cannot recall what the doctor said, but maintained that he was given the impression that there was no fracture. He said he was told that the swelling and pain would subside and in the meantime he should keep his arm in a sling and take paracetamol. The painkilling tablets he took in the months following were mostly the prescription medication Panadeine Forte, but he said that he obtained these tablets from friends and did not go to a doctor to have them prescribed. He said that the first doctor he saw after his attendance at the hospital on 22 June 1999 was Dr Pickering whom he visited in May 2000.
On behalf of the defendants the hospital records for 22 June 1999 were tendered. They showed that the plaintiff arrived at the hospital at 2.15 pm and was seen by a nurse at 4.10 pm and then by the doctor at 4.35 pm. The records show that the doctor’s initial assessment on a clinical basis was that there had been a fracture and that for that reason she ordered the x-rays. The records contain the note that the x-rays detected no abnormality and that the treatment plan was to place the plaintiff’s arm in a sling and suggest he take paracetamol. The records show that the plaintiff left the hospital at 5 pm. There is no note of the plaintiff being asked to submit to review at the hospital or a review by a medical practitioner if the pain and swelling persisted.
In addition to the hospital notes the defendants tendered the x-rays taken on 22 June and the radiologist’s report. The report included the following:
Findings:
There is no fracture or dislocation demonstrated.”
The plaintiff’s statement of claim contains allegations that the defendants were negligent in failing to immobilise the wrist and failing to advise the plaintiff to return if the pain persisted so that if on review it was appropriate further x-rays could be taken. A statement of orthopaedic surgeon, Mr Howard Bye was tendered on behalf of the plaintiff. Mr Bye reviewed the hospital notes to which I have referred. He said that the treating doctor’s notes indicated that on a clinical basis she was of the opinion that the wrist had been fractured and that “this clinical awareness should lead the treating doctor to be suspicious of x-rays which show no abnormality and suspect an occult fracture”. Mr Bye went on to say:
“I would therefore feel it appropriate for any such wrist injury to be reviewed clinically and perhaps radiologically, some ten days later to be able to positively exclude a wrist, but more particularly, a scaphoid injury.
It would be appropriate for such a wrist to be treated with immobilisation for ten days to lessen the likelihood of on-going trauma and to increase the patient’s comfort. That splintage would also give the doctor more change [sic] of knowing that the patient would return for follow-up.
The patient should have been told to return in a seven to ten day period and, if pain persisted, other x-rays should have been taken.
It is well known in medical circles for a scaphoid fracture to be not shown by initial x-rays and only be diagnosed at later review.
I would therefore suggest that Mr Maddox would have been better served by a clinical and probable radiological review seven to ten days after his initial presentation, based on the history available in the Royal Hobart Hospital notes.”
In Rogers v Whitaker (1992) 175 CLR 479 at 487 the High Court said:
“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill.”
Mr Bye has expressed the opinion that the patient should have been told to return in seven to ten days’ time and that the patient’s wrist should have been immobilised with a splint not only to protect the wrist from further trauma, but also to increase the likelihood of the patient returning. The plaintiff’s uncontradicted evidence is that for a considerable time after the consultation at the hospital his wrist remained swollen and he remained in considerable pain. In my opinion, these facts are sufficient for it to be open to a tribunal of fact to find that the treatment and advice given fell below the required standard and that the likelihood was that the plaintiff would have returned in about seven to ten days’ time if he had been told to do so.
Counsel for the defendants Mr Turner submitted that even if I were to find that it was arguable that the required standard of care had not been met there was insufficient evidence presented on the hearing of the application to give rise to a possibility of a tribunal of fact finding that the breach was causative of any injury, loss or damage. In particular he referred to par12 of the plaintiff’s statement of claim which alleges that the failure to promptly detect and treat the condition resulted in the injury becoming more resistant to treatment. Accordingly, he went on to submit that on the issue of causation that the claim was merely speculative and that consistently with what Zeeman J had said in Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996 at p9, that this affords strong grounds for refusing the application.
Counsel for the plaintiff, Mr Crotty, responded with references to the evidence which he said was sufficient for a finding of fact that the failure to promptly diagnose and treat the fractured scaphoid was the cause of the bone now failing to unite. He referred to the affidavit of Dr Pickering which annexed the report of the radiologist who examined the x-rays which Dr Pickering had ordered in May 2000. The radiologist’s report includes the statement:
“There is a fracture of the scaphoid and the proximal pole is somewhat sclerotic suggesting an element of a vascular necrosis.”
Dr Pickering also annexed to his affidavit a copy of his letter of referral to an orthopaedic surgeon dated 6 June 2000 in which he included the following:
“… ? a vascular necrosis? Too late for intervention.”
In his affidavit Dr Pickering said:
“… bearing in mind the time that has elapsed since Mr Maddox advised that he suffered the injury, I had concerns that it may have been too late for surgical intervention that may be able to reunite his fracture.”
As previously indicated there is also the evidence that despite surgical attempts in July 2000 and again in October 2001 the fractured bone has failed to unite.
There was no evidence explaining the meaning of the terms contained in the radiologist’s report which was referred to by Dr Pickering. I was invited by Mr Crotty to look up a medical dictionary for assistance and Mr Turner had no objection to me adopting this course provided that I confined myself to the meaning of the words and paid no regard to editorial opinion. I acted on the invitation, but found in the dictionaries insufficient assistance for me to profess any undertstanding of the medical condition referred to by the radiologist beyond that there was a fracture and that there had been a hardening at the proximal end of the bone at the fracture site suggestive of the death of cells due to inadequate blood flow.
The evidence referred to by Mr Crotty combined with the assistance I was able to obtain from looking up the terminology in medical dictionaries is sufficient in my opinion if presented to a tribunal of fact to enable that tribunal to conclude that the current problems in getting the fractured bone to satisfactorily unite are due to the lack of early surgical intervention. Mr Turner referred to Luxton v Vines (1952) 85 CLR 352 at 358, but I do not agree that a conclusion that delay led to the treatment problems would be a mere matter of conjecture. I think that on the evidence a tribunal of fact could make the finding on a reasoned basis. The plaintiff’s claim is viable.
As to the explanation for delay the evidence is to the effect that the plaintiff did not consider taking legal action until the matter was raised incidentally by Mr Crotty in July 2002. The plaintiff had seen Mr Crotty at that time in the course of giving instructions about a drink driving charge. The wrist injury was mentioned, some details were given to Mr Crotty and Mr Crotty told the plaintiff that he may have a claim against the hospital. The plaintiff declined to act on Mr Crotty’s suggestion that the matter be investigated as he was more concerned with the immediate problem of dealing with the drink driving charge. The plaintiff had been convicted of drink driving offences on four previous occasions and on the charge which he had been discussing with Mr Crotty he was on 29 July 2002 convicted and sentenced to four months’ imprisonment with three suspended. The plaintiff was released from prison at the end of August 2002 and about a month later he telephoned Mr Crotty’s office to make an appointment to discuss the possibility of a claim being made against the hospital. He was seen by a lawyer in Mr Crotty’s office on 1 October 2002. The lawyer said that he would consider the hospital records. The uncontested assertion in the plaintiff’s affidavit is that the lawyer said that the plaintiff had three years to commence the action “from the time [he] had knowledge of the misdiagnosis”. There is corroboration for this assertion in the lawyer’s affidavit where he says in effect that he only became aware that the action may have been brought out of time after filing the writ on 16 May 2003. As I have already said the evidence is that existence of the fracture was not brought to the plaintiff’s attention until 2 June 2000 when Dr Pickering advised the plaintiff that the x-rays he had ordered a few days earlier revealed the existence of the fracture. Accordingly, the plaintiff’s state of mind from when he first discussed the matter in detail with the lawyer in Mr Crotty’s office in October 2002 until after the issue of the writ was likely to have been that he was within time. Counsel for the defendants said in closing that no submission was to be made by him in respect of the explanation for the delay. I consider that the delay has been satisfactorily explained.
On the question of prejudice counsel for the defendants Mr Turner advised that none was claimed. If the chances of a fair trial had been rendered unlikely by reason of the delay or if for other reasons the belated commencement of the action would cause oppression or prejudice to the defendants I would expect that counsel would have adduced evidence and made submissions to that effect. There being no claim of prejudice I infer and accordingly find that the grant of an extension of time will not result in any material prejudice to the defendants.
I have found that the plaintiff has a viable case; that the delay has been satisfactorily explained and that there is no material resultant prejudice. Consistently with these findings I am positively persuaded that the justice of the case rests with overriding the policy considerations which motivate the enactment of limitation periods and granting the extension sought. There will be an order that the time within which the plaintiff’s action may be commenced is extended to the date of the filing of the writ, namely, 16 May 2003.
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