McLaughlan v Pun and Anor (Ruling)
[2016] VCC 518
•5 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| MEDICAL LIST |
Case No. CI-13-06572
| DONALD McLAUGHLAN (a person with a disability who sues by way of his Litigation Guardian LARAINE McLAUGHLAN) | Plaintiff | |
| v | ||
| YVONNE LI WAN PUN (who is sued as Executrix of the Estate of JOE TJANDRA, deceased) | Defendant | |
| and | ||
| IDAMENEO (NO 789) LIMITED (ACN 004 073 410) | Second Defendant | |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2016 | |
DATE OF RULING: | 5 May 2016 | |
CASE MAY BE CITED AS: | McLaughlan v Pun & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 518 | |
RULING
---
Subject: LIMITATION OF ACTIONS
Catchwords: Application for extension of time pursuant to s27 of Limitation of Actions Act 1958 – date when cause of action accrued – date cause of action was discoverable – nature and extent of knowledge of the plaintiff – conduct by solicitor – general and specific prejudice – whether “just and reasonable” to extend time
Legislation Cited: Limitation of Actions Act 1958, s27D, s27F, s27K, s27L
Cases Cited:Bell v SPC Limited [1989] VR 170; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Spandideas v Vellar [2008] VSC 198; Vellar v Spandideas [2008 [VSCA 139; Delai v Western District Health Service & Anor [2009] VSC 151; Davies v Nilson [2015] VSC 584; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Anisiena v H Crane Haulage Pty Ltd [1974] VR 670; Millard v State of Victoria [2006] VSCA 29
Ruling: Leave granted to extend the time for issue of the Writ.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Winneke QC with Mr D Seeman | Slater & Gordon Ltd |
| For the First Defendant | No appearance | Moray & Agnew |
| For the Second Defendant | Ms A Robertson | DLA Piper |
HIS HONOUR:
Preliminary
1 On 15 May 2003, the plaintiff, Donald McLaughlan, underwent surgery to deal with rectal cancer by Mr Joe Tjandra, colorectal surgeon.[1] In the years that followed, he underwent further surgical procedures.
[1]Mr Tjandra died in June 2007. The first defendant is the Executrix of his Estate.
2 On 26 February 2009, Mr McLaughlan was admitted to the Melbourne Private Hospital (“the hospital”) for further surgery, performed by Mr Ian Hastie, colorectal surgeon. In the course of surgery, he found foreign material, identified as gauze which had been left in the pelvic area from earlier surgery, probably that performed by Mr Tjandra in 2003.
3 In June 2009, Mr McLaughlan retained Slater & Gordon to act on his behalf in respect of a prospective medical negligence claim.
4 After a period of investigation, including the obtaining of a report from a medico-legal specialist, Professor Bruce Waxman, proceedings were instituted against the executor of Mr Tjandra’s estate in December 2013. Subsequently, it was deemed appropriate to join the hospital as a party to the proceeding. On 28 July 2014, Orders were made in this Court granting leave to amend the Writ to include the hospital as the second defendant. On 17 August 2015, the amended pleading was filed in the Court. In September of that year, solicitors for the hospital notified the plaintiff’s solicitors that the second defendant was incorrectly named. As at 2003, it was determined that the proprietor of the hospital was Idameneo (No 789) Limited (“Idameneo”). On 14 September 2015, an amended Writ was filed substituting Idameneo as the second defendant.
5 This is an application for an extension of the limitation period within which to bring an action for damages against Idameneo. The proceeding against Mr Tjandra was apparently brought within time; alternatively, there is no allegation in the Defence that the claim is statute barred. There was no appearance on behalf of the first defendant in this application.
6 For the reasons which follow, I consider it is just and reasonable to extend the limitation period.
Legislation and preliminary matters
7 Section 27D of the Limitation of Actions Act 1958 (“the Act”) provides:
“27D Limitation period for personal injury actions—general
(1)An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a)the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
(2)… .”
8 Section 27F of the Act provides a definition of the date the cause of action is discoverable. It says:
“27F Date cause of action is discoverable
(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3)In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) … .”
9 Sections 27K and 27L provide for the extension of the limitation period.
10 Section 27K provides:
“(1)A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2) Subject to section 27L, the court—
(a)may hear any of the persons likely to be affected by the application as it sees fit; and
(b)may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.”
11 Section 27L sets out the matters to be taken into account in determining whether to grant an extension of the limitation period. It says:
“(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant’s conduct.
(3)…
(4)… .”
12 I bear in mind the following principles relevant to this application:
(i) Mr McLaughlan has the onus of satisfying the Court that it is just and reasonable to extend the limitation period;[2]
[2]Bell v SPC Limited [1989] VR 170 at 174
(ii) In determining an application for an extension of time, the Court should synthesise the competing considerations, including those set forth in s27L of the Act;[3]
[3]Tsiadis v Patterson (2001) 4 VR 114 at 116 and 123
(iii) The delay referred to in s27L(1)(a) of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time;[4]
[4]Koumorou v State of Victoria [1991] 2 VR 265 at 271
(iv) The availability of a cause of action to the plaintiff against his or her solicitor is a relevant factor to be taken into account;[5]
[5]Tsiadis v Patterson (supra)
(v) An inordinate delay may be taken as evidence of prejudice;[6]
[6]Tsiadis v Patterson (supra) at 123-124
(vi) Time may diminish the significance of a known fact or circumstance and relevant evidence may be lost. It is in the public interest that proceedings be issued within limitation periods and that parties, including insurers, be able to manage their affairs in the knowledge that they have no liabilities beyond a certain period;[7]
(vii) Consideration should be given to whether prejudice, either general or specific, arising from the passage of time, will prevent or reduce the prospects of a fair trial of the proceeding.
[7]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-555
The relevant facts
13 Mr McLachlan was born in 1936 and is now seventy-nine years old. He has a long history of gastrointestinal problems. More recently, in 2014, he has had problems with memory and concentration as a result of which his wife, Mrs Laraine McLaughlan, was appointed Litigation Guardian.
14 In 2003, Mr McLaughlan was diagnosed with rectal cancer and in May of that year, Mr Tjandra performed substantial bowel surgery. Thereafter, he continued to be troubled by bowel problems and underwent a number of surgical procedures, including colonoscopies, biopsies and examinations under anaesthetic. These procedures are detailed in a letter from Mr McLaughlan’s solicitors, Slater & Gordon, to a medico-legal expert, Professor Bruce Waxman, dated 4 March 2011.[8]
[8]Exhibit NMM 12 to the affidavit of Nicholas Matthew Mann sworn 23 December 2015
15 Mr Tjandra’s patients and records were taken over by Mr Ian Hastie following Mr Tjandra’s death in 2007.
16 Mr McLaughlan was examined in late 2008 and 2009 by Mr Hastie with ongoing bowel problems and perianal pain. On 26 February 2009, Mr McLaughlan was admitted to the hospital and again underwent substantial colorectal surgery. The details are set forth in an operative report of Mr Hastie.[9] In particular, dense foreign material was identified in part of the pelvis. This material was subsequently found to be medical gauze.
[9]Exhibit BZP 13 to the affidavit of Bianca Parussolo sworn 22 April 2016
17 According to Mr Hastie’s clinical notes,[10] the following appears:
“D/w [discussed with] PT [patient] result of pelvic x-ray – likely retained gauze from initial surgery in 2005. Discussed finding & … .”[11]
[10]Exhibit BZB 14 to the affidavit of Bianca Parussolo sworn 22 April 2016
[11]Counsel agreed that the reference to the surgery of “2005” referred to the original surgery of 2003
18 According to the affidavit of Mrs McLaughlin, she said, of the consultation of 2009:
“Mr Hastie advised my husband and me of the fact that he had found a surgical gauze which had been left inside from previous surgery. He said that the pain and discomfort that the plaintiff was suffering may be due to the gauze.”
19 In June 2009, Mr McLaughlan contacted Slater & Gordon to act on his behalf in relation to a potential medical negligence claim relating to the failure to remove the gauze in earlier surgery. According to Mrs McLaughlan’s affidavit, she and her husband were advised about the limitation period within which proceedings could be brought as early as June 2009.
20 Details of the steps taken by various practitioners of Slater & Gordon from that time through to the present are detailed in the affidavits of Mr Mann sworn 23 December 2015 and 21 April 2016. It is unnecessary for me to detail all of those steps.
21 Details of the steps taken by Mr and Mrs McLaughlan, and the advice provided to them by Slater & Gordon, are set forth in the affidavit of Mrs McLaughlan sworn 26 April 2016. I am satisfied that they, like most plaintiffs in medical negligence litigation, placed themselves in the hands of their lawyers and did as they were directed in pursuit of the claim.
22 During 2009, Slater & Gordon requested and obtained clinical notes from Mr Tjandra (through Mr Hastie) and from the hospital. By letter of 27 November 2009, Slater & Gordon wrote to Mr McLaughlan “noting that the gauze could have been retained at any one of a number of surgical procedures which he had undergone, and that further investigation was required to determine the most likely procedure in which the gauze was retained”.
23 There was a delay while enquiries were made to identify whether Mr Tjandra was insured through one of the major medical insurers, and it was not until February 2011 that Slater & Gordon requested an expert medical opinion from Professor Bruce Waxman. His report was not produced until October 2011.[12]
[12]Exhibit NMN 15 to the affidavit of Nicholas Mann sworn 23 December 2015
24 In the letter to Professor Waxman, a number of questions were asked as to the issues to be determined. They included:
“5.1 In which surgery undergone by my client is it most likely that the gauze pack was left behind?
…
5.2Who is responsible for ensuring that all packs are removed at the conclusion of surgery?
…
5.3Is failing to remove a surgical pack considered negligent?
…
5.4Is it likely that my client’s ongoing pelvic infection/inflammation is related to the pack?
…
5.5Any other matters you consider to be of significance.”
25 In response to the questions posed, Professor Waxman said:
“5.1 In which surgery undergone by my client is it most likely that the gauze pack was left behind?
The operation performed by Professor Joe Tjandra at the Melbourne Private Hospital on 15 May 2003, involving an ultra-low anterior resection and formation of loop ileostomy.
5.2Who is responsible for ensuring that all packs are removed at the conclusion of surgery?
The ultimate responsibility for the pack count and to ensure that the peritoneal cavity is free of surgical items placed in the peritoneal cavity at the time of the surgery is that of the surgeon. Although in some cases nursing staff responsible for the count have admitted liability, if the count was correct and a foreign body or a surgical item was retained, the legal responsibility is that of the surgeon performing the operation. The details of legal liability for retained surgical material is not directly within my area of expertise as a colorectal surgeon, but relevant to the Code of Conduct of the Royal Australasian College of Surgeons.
5.3Is failing to remove a surgical pack considered negligent?
Yes.
5.4Is it likely that my client’s ongoing pelvic infection/inflammation is related to the pack?
Yes.”
26 In January 2012, Slater & Gordon advised Mr McLaughlan that the report of Professor Waxman supported a claim in negligence against Mr Tjandra.
27 Little appears then to have been done until May 2013, when a further appointment was arranged with Professor Waxman to assess the extent of Mr McLaughlan’s injury, as it related to negligence, and whether he met the significant injury threshold as required by the Wrongs Act 1958. A further assessment occurred in June 2013 and a further report was provided in July 2013. That report confirmed the injury suffered by Mr McLaughlan met the threshold, and his ongoing pelvic and anal pain and the fact that he had a loop ileostomy were a direct consequence of the retained gauze. Further, because of the retained gauze, it was more likely that the colostomy was permanent.
28 In May 2013, before receipt of the second report, Mrs McLaughlan contacted Slater & Gordon, apparently concerned about the time limit which applied to the claim. She was advised that no proceedings could be issued until Professor Waxman’s further report was provided. In the latter part of 2013, enquiries were made as to the executor of Mr Tjandra’s estate and proceedings were issued in the County Court in December 2013 against the estate of Mr Tjandra as the sole defendant. The proceeding was served in July 2014.
29 In December 2014, solicitors for Mr Tjandra’s estate wrote to Slater & Gordon suggesting the hospital was negligent, and in June 2015, served a report of a nurse, Ms Rose Lyall. That report apparently suggested that there were grounds to base a claim in negligence against the hospital by reason of failure of the theatre staff in the 2003 operation to properly account for the gauze. That account would appear supported by a “root cause analysis investigation report form”[13] which was provided to plaintiff’s counsel at the hearing of this application. In particular, the “surgical counts” were said to be non-compliant with existing policy.
[13]Exhibit E – an investigation of the incident
30 In July 2015, the Court made Orders granting leave to amend the Writ to include the hospital as the second defendant. In August 2015, an amended pleading was filed. In September 2015, the solicitors for the hospital advised that the second defendant had been incorrectly named and in fact it, Idameneo, was the correct defendant.
31 According to the affidavit of Mrs McLaughlan, the issue of whether the nurses played a role in failing to remove the gauze was raised. She said she and her husband were advised that “the buck stops with the surgeon”.
32 The steps taken by the solicitors for Idameneo are set forth in two affidavits of Bianca Parussolo sworn 19 April and 22 April 2016. Those affidavits note that in February 2009, a representative of the hospital contacted DLA Phillips Fox (as the firm was then known) about the discovery in February 2009 of the gauze following investigations. A file was opened but no further instructions were received.
33 In January 2016, DLA Piper took over the defence of the proceeding on behalf of Idameneo, from another firm, Norton Rose Fulbright, having been earlier retained. Continued attempts were made to locate nurses who were referred to on an “operation count sheet” as being in attendance for the initial surgery in May 2003. Details of the steps taken to establish the identity of those nurses are set forth in Ms Parussolo’s affidavits. It is unnecessary to detail the investigations made, save to say that, in my view, the investigations were extensive, and made in a timely manner. One nurse cannot be identified, another who appears to be recorded as “Nurse Uncles” cannot be located, while the others present, Nurse Bartholomew and Nurse Semple, have each been identified and spoken to. No information has been obtained from Nurse Semple, who, despite being prepared to answer questions initially, has proved difficult to contact. Nurse Bartholomew was unable to recall anything of the 2003 surgery and has no independent recollection of a gauze count. Given her position as scrub nurse, it was unlikely she made any record.
The date the cause of action was discoverable
34 Section 27F requires three matters to be known by a person before the cause of action is said to be discoverable. They are:
· The fact that a personal injury has occurred
· The fact that the injury was caused by the fault of the defendant
· The fact that the personal injury was sufficiently serious to justify the bringing of an action.
35 Section 27F(2) makes the test for the requisite knowledge an objective one. It is what a person “ought to know” of a particular fact, having taken all reasonable steps to ascertain the fact.
36 It was conceded by both counsel that the injury suffered as a result of the gauze being left from the 2003 operation was the cause of an injury sufficiently serious to justify the bringing of an action. It is thus a matter to determine when Mr McLaughlan knew (or ought to have known) an injury had occurred and that that injury was caused by the fault of the defendant.
37 According to the clinical note of Mr Hastie made 2 March 2009, he discussed with Mr McLaughlan (and presumably Mrs McLaughlan) that, as a result of an x-ray, it was likely some gauze had been retained from the initial surgery in 2003 (although the note records 2005). However, according to the affidavit of Mrs McLaughlan, she and her husband were advised that the gauze had been left from previous surgery and that the pain and discomfort he had been suffering may be due to that gauze. On Mrs McLaughlan’s version of events, the precise surgery in which the gauze had been left was not identified, and further, the pain and discomfort may have been due to the gauze, but may have been due to some other cause. Without hearing from these persons in cross-examination, it is difficult to make a determination on the issue. It is reasonable to infer that it would not have been easy for Mr McLaughlan to have understood the matters which were being explained to him by Mr Hastie. He had a long period of illness, with many surgical interventions. He was in the process of recovering from major surgery. While it was clear that he was told that some gauze had been left from a previous operation, I conclude that his knowledge, objectively viewed, was not such as to enable him to “know” that the problems that he was suffering were related to the gauze being left in situ, and further, that the gauze was caused by the fault of representatives of the hospital, as opposed to Mr Tjandra.
38 This is confirmed by the fact that when Slater & Gordon wrote to Professor Waxman in March 2011 seeking his expert opinion, the first question that was asked was: In which surgery was the gauze most likely to have been left? The second question was as to who was likely to be responsible. These questions were presumably asked after consultation with Mr and Mrs McLaughlan.
39 In Spandideas v Vellar,[14] Kaye J[15] considered the concept of “fault”. He said Parliament had not intended for the word “fault” to be determined by a plaintiff in the legal sense. He said the word “fault” connoted culpability or blame.[16] Further, the concept of an injury being caused by the “fault” of another meant that it was caused by an act of a person which that person should not have done, or should have done differently, or by an omission by that person to carry out an act which should have been done. It was only when a person understood that the injury was as a result of the act of a person so described that the cause of action was discoverable. With respect, I adopt his Honour’s reasoning.[17]
[14][2008] VSC 198
[15]As his Honour then was
[16]Spandideas v Vellar (ibid) at paragraph [32]
[17]His Honour’s interpretation was adopted by the Court of Appeal. See Vellar v Spandideas [2008[ VSCA 139
40 There is a further matter which is of significance in this debate. Even if it could be said that Mr McLaughlan knew or ought to have known that the gauze pack firstly was left in situ after the 2003 operation, and, secondly, that that was the cause of the ongoing pain and other problems from which he had been suffering over a number of years, s27F(1)(b) provides that the requisite knowledge of the personal injury was that it was caused by the fault of the defendant. There is nothing to suggest, from Mr Hastie’s clinical note, that there was attribution of fault to any particular person or entity. By the use of the phrase “the fault of the defendant”, the legislation intended the knowledge of fault to be related to the act or omission of a particular person, or class of person. Even if it is reasonable to determine Mr McLaughlan thought the fault lay with Mr Tjandra, as was possible, given he was the surgeon, it is another thing to say that there was fault on the part of the nurses or other employees of the hospital present in the operating suite. It is reasonable to accept that he would have no knowledge of gauze counts nor generally as to hospital procedures to know where the blame might be laid.
41 In all these circumstances, I am not satisfied that the knowledge requirement of s27F(1) was met as at March 2009.
When in fact then did Mr McLaughlan have the requisite knowledge?
42 This question requires an assessment of the notion of knowledge. At one end of the spectrum, knowledge may be said to be knowledge of a vague, esoteric possibility of a fault on behalf of a party which gave rise to injury. At the other end, knowledge may be a much more certain understanding, such as advice from a lawyer that an injury was caused as a result of someone’s fault, with a consequent strong prospect of successful litigation. It is clear the legislation requires an objective test. In my view, the knowledge required is more than some vague possibility that someone may be at fault, rather it is objective knowledge that there is the real prospect that a person or class of person’s act or omission caused injury. That prospect does not encompass the certainty of litigious success, but it must nonetheless be a real and palpable knowledge.
43 According to the affidavit of Mrs McLaughlan, she and her husband were not certain what role the nurses played in removing the gauze or ensuring it was removed.[18] She said they were advised by Slater & Gordon that the “buck stops with the surgeon”. The first report of Professor Waxman referred to the possibility of the nurses being responsible for the gauze count but suggested that, according to the Code of Conduct of the Royal Australasian College of Surgeons, legal liability rested with the surgeon. Even at that point, I am of the view it was not clear to Mr and Mrs McLaughlan that the nurses ought to bear any responsibility for leaving the gauze in situ. According to Mrs McLaughlan, even after receipt of the first Waxman report there was not nothing to suggest to her and her husband there was any need to bring a claim against anyone else. According to her affidavit, Mrs McLaughlan deposed that in October 2013, when instructions were given to issue a proceeding against the surgeon, it did not occur to her, and she did not discuss with her husband, the need to bring a claim against the hospital.
[18]Paragraph [12] of Mrs McLaughlan’s affidavit
44 It was probably not until late 2014, early 2015, when the solicitors for the first defendant wrote to Slater & Gordon advising that in their view, the hospital, through its employees, ought be joined as a party to the proceeding on the grounds that they had responsibility for checking to ensure the gauze was removed after the 2003 surgery. That was presumably confirmed when the report of the nurse, Ms Lyall, was received in June 2015. Over this period it would be reasonable to accept these matters were discussed with Mr and Mrs McLaughlan and that objectively, it could be said there was a basis for there to be fault or blame attributable to the hospital.
45 It is thus somewhat academic and unnecessary to determine precisely when the date the cause of action was deemed discoverable as s27D(b) provides that regardless of the date of discoverability, the period within which a proceeding might be brought expired twelve years from the date of the act or omission alleged to have resulted in personal injury. That date is 15 May 2015 or what is referred to as the “long stop date”. As the proceeding against Idameneo was issued outside that period, the proceeding cannot be brought unless the period is extended pursuant to s27K, taking into account the matters referred to in s27L.
Prejudice to the Second Defendant
46 Ms Robertson, for Idameneo, squarely raised the issue of prejudice to her client in being able to conduct a fair trial given the lapse of time since the surgery of 2003. There was debate in the course of submissions as to whether “delay” referred to in s27L(1)(a) and (b) means delay from the accrual of the cause of action, or from the date the cause of action was discoverable. The issue received the attention of Beach J[19] in Delai v Western District Health Service & Anor.[20] His Honour referred to the Act before the introduction of Part IIA in 2003.
[19]As his Honour then was
[20][2009] VSC 151
47 Since Koumorou v State of Victoria,[21] the concept of delay means delay from the date of the accrual of the cause of action until the time of the application to extend time. His Honour noted there were some grounds for contending that delay referred to in s27L(1)(a) and (b) is delay from the time the relevant cause of action was discoverable, although it was unnecessary for him to determine the point. He “favoured” the conclusion that the delay referred to in s27L is delay from the accrual of the cause of action. For the purpose of my assessment of delay and prejudice, I will presume the delay is delay from 2003 to the present time.
[21]Supra
48 Ms Robertson pointed to a range of both general and specific prejudice as a result of which she claims her client will be unable to obtain a fair trial of the issues.
49 Given the lapse of time, any evidence by any person present in the course of surgery in 2003 would be unreliable. As was said in Brisbane South Regional Health Authority v Taylor,[22] where there is delay, particularly considerable delay, the whole quality of justice deteriorates. Sometimes the deterioration is not recognisable, even by the parties. “What has been forgotten can rarely be shown … 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 action arose.”[23]
[22]Supra
[23]Brisbane South Regional Health Authority v Taylor (supra) at 551
50 Further, said Ms Robertson, there are distinct aspects of specific prejudice which will affect her client. These include:
· The first defendant is now deceased and cannot be cross-examined. There was a suggestion in some of the material that he was a somewhat intimidating person, difficult to work with and non-compliant with some hospital protocols. Idameneo would thus be unable to cross-examine him on those issues to deflect blame from the nurses.
· Two of the four nurses involved cannot be identified, the third is proving difficult to obtain instructions from and the fourth has no memory of the surgery.
· There is some suggestion there is an absence of relevant medical records although there is nothing in the affidavits of Ms Parussolo as to what records are missing. The hospital records have apparently been obtained, as have the clinical records of Mr Tjandra (through Mr Hastie). The investigations conducted in 2009 when the gauze was found to have been related to previous surgery are available.
51 Any analysis of the prejudice suffered by Idameneo must take account of the nature of the proceeding. The claim by the plaintiff is straightforward. There is no doubt that gauze was left in situ very probably from the 2003 operation. It is clear Mr McLaughlan suffered a substantial injury as a result. The question, in these circumstances, is not so much whether there was negligence, but whether responsibility for leaving the gauze in situ was that of the nursing staff, or the surgeon. That question relies not so much upon the recollection of witnesses present at the time, but protocols and procedures that were in place and who had ultimate responsibility to ensure surgical material was not left within a patient.
52 In terms of the memory of the nurses present in the theatre, the reality of the situation is that it is unlikely they would have been able to recall what transpired in a busy operating theatre within months after the event. Most surgeons have an operating list and a number of surgeries are performed each day. Obviously they would be unable to recall what occurred in relation to the gauze used in the operation, at the present time, but that was likely to have been the case within months after May 2003. There was nothing unusual about what occurred in the surgery to prompt the memory of nurses as to how it came about that the gauze was left in situ. In fact, no one knew about it until 2009. In these circumstances, I am not convinced there is any significant prejudice to the second defendant in being unable to locate the staff present or for those staff to recall what occurred.
53 True it is the first defendant is not available for cross-examination but that has been the case since 2007. Further, the likelihood is that his recollection of events would be no different from the nurses. However, I accept there is some prejudice to Idameneo in being unable to cross-examine Mr Tjandra. Any prejudice suffered by Idameneo must take account not only of a case being brought by the plaintiff, but the case against any other defendant in contribution proceedings. However, I am not satisfied that there is particularly significant prejudice by Mr Tjandra not being available.
54 I bear in mind the comments by McHugh J in Brisbane South Regional Health Authority v Taylor.[24] It may well be possible there are documents evidencing protocols regarding the counting of gauze which may not be available through the lapse of time. There may be some aspect of the procedure in theatre which has been forgotten, given thirteen years has passed since the original surgery. There must be general prejudice to Idameneo.
[24]Supra
55 In Davies v Nilson,[25] J Forrest J, in referring to an earlier decision of Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[26] said the following:
“‘… in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’. A Court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. In South Western Sydney Area Health Service v Gabriel, Hodgson JA said:
‘… The true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.’”
[25][2015] VSC 584
[26][2007] VSC 517
56 As was said by his Honour in Davies v Nilson, in the present case, the trial is likely to proceed as an assessment of damages, at least in terms of the plaintiff’s case. The only issue as to liability would be a contribution issue between the defendants. Each of the defendants would be able to call expert evidence as to what was the appropriate practice and procedure for a “gauze count” and who was responsible for it. Even with the lapse of time, that issue could be the subject of expert opinion. Although not produced to the Court, the hospital’s medical records have been made available to the parties.[27]
[27]Exhibit BZP14 to the affidavit of Ms Parussolo sworn 22 April 2016
57 Accepting that there is general prejudice to Idameneo, and possibly some specific prejudice, I am of the view that neither are such as to mean that an acceptably fair trial would not take place.
The length of, and reasons for, delay on the part of the Plaintiff
58 I have concluded that Mr McLaughlan and his wife acted promptly and reasonably throughout the relevant period. No blame can be sheeted home to them for the delays which have transpired. They, like many in their position, accepted the advice of experienced lawyers and did what they were advised to do on the various issues which confronted them.
59 In Davies v Nilsen,[28] J Forrest J dealt with an application for an extension of time in which he found no fault on the part of the applicant, despite very considerable delays in the prosecution of the proceeding by her solicitors. He referred to the statement by Starke J in Anisiena v H Crane Haulage Pty Ltd:[29]
“… It is also conceded that the only step the claimant took was to instruct his solicitors to prosecute his claim. How they did this and against what parties the action was to be brought, were matters that he left to them. In my judgment it was both reasonable and desirable to do so. I do not think it would have been at all reasonable for him to have interfered with the conduct of his action. I would not do so myself, and I am of opinion that it was entirely reasonable for a layman without legal qualifications to do as he did. … .”
[28]Supra
[29][1974] VR 670
60 The Court of Appeal adopted this approach in Millard v State of Victoria.[30]
[30][2006] VSCA 29 at paragraph [37]
61 Likewise in the present proceeding, I am satisfied that Mr and Mrs McLaughlan acted appropriately. They instructed solicitors very shortly after they became aware of issue of the cause after the 2009 surgery. They did all that was required of them thereafter and provided instructions where necessary. No fault lies with them.
The conduct of the Plaintiff’s solicitors and the prospect of an action against them
62 Since Tsiadis v Patterson,[31] the prospect of a cause of action against a solicitor for failing to take steps within the time limitations is a matter to be taken into account. Buchanan JA said:
“… The prospect of recovering damages from a solicitor who is responsible for the delay in instituting proceedings is a circumstance of the case, and in my view is one that is relevant to the exercise of the court’s discretion. … .”[32]
[31]Supra
[32]At paragraph [27]
63 His Honour said further:
“The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. … .”[33]
[33]At paragraph [28]
64 In that case, despite a lapse of six years, over the period from 1990 to 1996 when the plaintiff’s solicitor did almost nothing to progress the claim, his Honour found that neglect not sufficient to prevent an extension of time.
65 In considering the chronology of events as set out in Mr Mann’s affidavit of 23 December 2015, there appears to me to be delays from 2009 to the present time in the manner in which Slater & Gordon investigated the potential cause of action, and then brought proceedings.
66 At the outset they must have been aware that there were time limitations of one sort or another which were likely to apply to the case. Even although the fault was not discovered until 2009, the original surgery occurred in 2003. Any competent solicitor, let alone one working in the medical negligence division of a large and experienced firm, would be immediately on guard. Most of 2010 appears to have been taken with trying to determine whether Mr Tjandra had medical insurance. The affidavit refers to no other steps taken over that year. That issue should have been investigated at the outset. It is reasonable that no expert opinion was obtained until all of the available hospital and clinical notes were to hand. Further, there was a significant delay in Professor Waxman providing his first report. That was not received until October 2011. There was then a period from January 2012 until May 2013 when very little appears to have been done. On the later date, a further report from Professor Waxman was sought to determine whether the plaintiff met the significant injury threshold. It is arguable that this matter should have been addressed in the earlier report, although it is not uncommon in medical negligence proceedings to have different practitioners assess, on the one hand, liability and injury, and on the other hand, whether the significant injury threshold is met.
67 At no time was a generally endorsed writ issued to protect the plaintiff’s position, although that was considered several times. There is no explanation in the affidavit as to why this did not occur. Despite firm being retained in 2009, it was not until late 2013 that the proceeding against Mr Tjandra was issued. At times, the possibility of proceeding against the hospital was considered. It could be argued that a competent practitioner in the medical negligence field would be alert to such a claim and aware of counts of medical material conducted in theatres to ensure nothing is left inside a patient. On the other hand, there was the first report of Professor Waxman, who directed blame squarely at the surgeon rather than the nurses.
68 In Slater & Gordon’s defence, their focus was on the surgeon and not the nurses. It was only when they were made aware of the expert nursing report that they concentrated on the conduct of the nurses. Nonetheless, in my view, the slow progress in the investigation, assessment and prosecution of the claim was quite unacceptable in the light of the circumstances that prevailed. Things should have proceeded with much greater haste. That would have resulted in the case against the hospital becoming clear at an earlier time. The limitation clock was quite obviously ticking and it appears little attention was paid to it.
69 Against this, however, are the following factors which must be taken into account:
· I have not heard from Slater & Gordon specifically in response to what appears to be a significant delay. There may be a host of reasons as to why matters proceeded as slowly as they have.
· Any professional negligence proceeding is difficult. A case needs to be pleaded and proved in professional negligence not only against the solicitor, but the original tortfeasor.
· At best, Mr McLaughlan, in proceedings against his solicitors, would claim a loss of chance. That is a different claim that he now seeks to prosecute against the defendants in the present proceeding.
· Mr McLaughlan is now seventy-nine. It is clear from his wife’s affidavit he has very serious physical and psychological health issues, the latter so significant that his wife is now his Litigation Guardian. She herself has been diagnosed with Parkinson’s Disease. To launch complex litigation at his age and in those circumstances would be difficult.
70 While I bear in mind there is some prospect of a proceeding against Slater & Gordon, in the circumstances discussed above, it is not a matter which weighs greatly in the scheme of things. It is not such as to prevent the granting of an extension of time.
Conclusions
71 It is clear that the fault or blame, be it against Mr Tjandra or the hospital employees which left gauze packs in situ after the 2003 surgery, was not discovered until at least 2009. Even then, there were significant issues not resolved, including as to who was responsible, and whether Mr McLaughlan’s condition was related to the gauze.
72 No blame can be focused upon Mr or Mrs McLaughlan. They acted promptly and followed the advice of their solicitors.
73 While there is some general prejudice to Idameneo and the prospect of some specific prejudice, it is not such as to prevent an acceptably fair trial being conducted.
74 There is the prospect of a proceeding against Slater & Gordon for failing to act promptly, although I have only heard one side of the story so far and there are very significant impediments to Mr and Mrs McLaughlan pursuing such a course.
75 In all these circumstances, I am satisfied it is just and reasonable to extend time. I shall hear from counsel as to appropriate orders.
- - -
1
7
0