Milone v Bulman
[1999] QSC 74
•9 April 1999
IN THE SUPREME COURT
OF QUEENSLAND
Writ No.1067 of 1992
Brisbane
Before Justice Wilson
[Milone v Bulman]
BETWEEN:
GRAZIELLA NARDIA GERALDA MILONE
(AN INFANT BY HER NEXT FRIEND GIOVANNI MILONE)
Plaintiff
AND:
ASSUNDA LEONARDA MILONE
Second Plaintiff
AND:
JOHN GOULD BULMAN
First Defendant
AND:
ST ANDREW’S WAR MEMORIAL HOSPITAL
Second Defendant
AND:
JOHN DOUGLAS NEWMAN YELLAND
Third Defendant
AND:
JAMES RAYMOND TIERNAN
Fourth Defendant
REASONS FOR JUDGMENT - WILSON J
Judgment delivered 9 April 1999
CATCHWORDS: PRACTICE - leave to amend particulars of statement of claim - whether amendment would raise new case different from that previously pleaded - whether defendant would be prejudiced by passage of time
Counsel:Mr J A McDougall for the plaintiff
Mr J J Clifford QC and Mr P V Ambrose for the second defendant
Solicitors: Murphy Schmidt for the plaintiff
Gadens Lawyers for the second defendant
Hearing Date: 29 March 1999
IN THE SUPREME COURT
OF QUEENSLAND
Writ No.1067 of 1992
Brisbane
Before Justice Wilson
[Milone v St Andrew’s War Memorial Hospital & Ors]
BETWEEN:
GRAZIELLA NARDIA GERALDA MILONE
Plaintiff
AND:
ASSUNDA LEONARDA MILONE
Second Plaintiff
AND:
JOHN GOULD BULMAN
First Defendant
AND:
ST ANDREW’S WAR MEMORIAL HOSPITAL
Second Defendant
AND:
JOHN DOUGLAS NEWMAN YELLAND
Third Defendant
AND:
JAMES RAYMOND TIERNAN
Fourth Defendant
REASONS FOR JUDGMENT - WILSON J
Judgment delivered 9 April 1999
This is an application for leave to amend particulars of the statement of claim.
The action was commenced on 29 June 1981 by writ in which the plaintiff claimed against the second defendant damages for negligence and/or breach of duty. On 6 November 1998 the plaintiff obtained leave to amend her statement of claim. A claim for breach of contract was added.
At the time the action was commenced the plaintiff was an infant suing by her next friend (her mother). Although she has since attained her majority, it is common ground that by reason of brain damage she is incapable of conducting the proceedings herself. Accordingly, her mother has continued to be her next friend.
The action has been set down for trial commencing on 12 July 1999. It is expected to take about six weeks.
The plaintiff was admitted to St Andrew’s War Memorial Hospital in Brisbane in relation to the epilepsy from which she suffered. Doctors Yelland and Tiernan were her neurosurgeon and paediatrician respectively.
She alleges that on 5 November 1972, whilst she was a patient at the hospital, she sustained brain damage in a generalised seizure which lasted 90 minutes. In broad terms she alleges (inter alia) that the second defendant was negligent and/or in breach of contract in failing to administer anticonvulsants intravenously as opposed to intramuscularly. The drugs could not be administered intravenously by nursing staff; the services of a medical practitioner were required for this purpose and were not immediately available.
In her statement of claim delivered on 15 October 1984 she gave the following particular of the negligence and/or breach of duty of the second defendant:
“7(h)Failing to have available a person suitably qualified to administer anticonvulsants intravenously when it was or ought to have [been] known that she had suffered epileptic convulsions and had been admitted to St Andrews for investigation of a history of such convulsions.”
The amended statement of claim delivered in November 1998 contained the following as a particular of negligence and/or breach of duty and/or breach of contract on the part of the second defendant:
“8(iv)Failing to have available a person suitably qualified to administer anticonvulsants intravenously to the Plaintiff when it was or ought to have been known that she had suffered epileptic convulsions and had been admitted to the Second Defendant’s hospital for investigation of a history of such convulsions.”
On 30 November 1998 the second defendant sought further and better particulars of “the way in which and the extent to which such history had been made known to the second defendant”. It had not previously sought further and better particulars of what had been para.7(h) of the original statement of claim.
In response to the request the plaintiff said:
“As to the way in which and the extent to which such history had been known to the Second Defendant, the Second Defendant was provided with correspondence from Dr Henry to the Third defendant which correspondence was placed on the Plaintiff’s chart. The Plaintiff will refer to that correspondence for its full terms, true meaning and effect. Further, such history was noted in the Plaintiff’s chart by the Third Defendant on Page 1.”
The plaintiff now seeks to add to those further and better particulars the following:
“In addition, the Plaintiff’s mother handed to the Second Defendant’s admitting officer at the time of admission, a letter addressed ‘To whom it may concern’ from either Dr V.B.Henry or Dr C.Salinitri, speaking of the Plaintiff’s epileptic condition and the need to control seizures by the administration of intravenous valium.”
There has been disclosure of documents. The plaintiff did not identify this letter as one no longer in her possession. It was not discovered by any of the defendants. The second defendant has no record of ever receiving it. Enquiries were made recently of the nursing director and the sister in charge of admissions, both of whom are now retired, and neither of whom has any recollection of the letter. Neither Dr Henry nor Dr Salinitri has a copy of the letter.
The existence of the letter was first raised to the second defendant in 1997.
The second defendant contends that the proposed amendment to the further and better particulars is not responsive to its request. It contends that it raises a new case based on actual knowledge that intravenous valium was effective in controlling the plaintiff’s convulsions.
Paragraph 8(iv) of the statement of claim raises the issue whether the second defendant knew or ought to have known that it was appropriate to administer intravenous valium to the plaintiff. I do not accept that the amendment would raise a new case as contended by the second defendant. Rather, it would properly be characterized as the giving of further particulars rather than the pleading of further material facts. See NRNQ v. MEQ Nickel Pty Ltd [1991] 2 Qd R 592 at 597. There is no doubt that if the mother’s evidence in this regard were accepted, it would strengthen the plaintiff’s case. But to allow the amendment of the particulars would not be to allow the plaintiff to present a case different from that pleaded to date.
The second defendant has foreshadowed an application for leave to reopen its pleading against the third and fourth defendants. I am not prepared to consider the likely fate of such an application at this time. If so advised, the second defendant should make the application on notice to the third and fourth defendants.
The second defendant has raised the further objection that if the amendment were allowed it would be prejudiced by the effect of the passage of time on its witnesses’ memories. This can be a powerful factor in various applications where the time prescribed by the Limitation of Actions Act 1974 for commencing proceedings has expired - e.g. applications to extend the limitation period, applications for leave to proceed pursuant to S.C.R. O.90 r.9, applications to dismiss for want of prosecution. See generally Brisbane South Regional Health Authorityv. Taylor (1996) 186 CLR 541 at 551-553 per McHugh J. However, by reason of the plaintiff’s mental incapacity, time has not run against her. Moreover, her mother’s evidence will no doubt be scrutinised very closely, having regard not only to the period of time which has elapsed since the letter was allegedly handed to the hospital but also to the fact that it was not referred to in the affidavit of documents filed on behalf of the plaintiff. In this sense the passage of time will be a problem for the plaintiff just as it is for the second defendant.
The plaintiff ought not to be prevented from relying on the second defendant’s receipt of the letter (assuming she can prove this) when the second defendant did not seek particulars until 1998, some 14 years after an allegation in similar terms to para.8(iv) was first made in the plaintiff’s statement of claim.
In all the circumstances, I allow the amendment of the particulars.
I order that the second defendant’s costs of and incidental to the plaintiff’s application to amend the particulars be paid by the plaintiff in any event.
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