Mitchell v WA Country Health Service
[2007] WADC 207
•26 NOVEMBER 2007
MITCHELL -v- WA COUNTRY HEALTH SERVICE [2007] WADC 207
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 207 | |
| Case No: | CIV:1523/2003 | 5 OCTOBER 2007 | |
| Coram: | WISBEY DCJ | 25/11/07 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application to amend refused | ||
| PDF Version |
| Parties: | CHRISTINE MITCHELL WA COUNTRY HEALTH SERVICE |
Catchwords: | Practice and Procedure Amendment of statement of claim Amendment pleading new time barred causes of action. Rule in Weldon v Neal |
Legislation: | Rules of the Supreme Court 1971, O 21 r 5 |
Case References: | Brickfield Properties Ltd v Newton [1971] 1 WLR 862 Dye v Griffin Coal Mining Company Pty Ltd (1998) 19 WAR 431 Morgan v Banning (1999) 20 WAR 474 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Weldon v Neal (1887) 19 QBD 394 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WA COUNTRY HEALTH SERVICE
Defendant
Catchwords:
Practice and Procedure - Amendment of statement of claim - Amendment pleading new time barred causes of action. Rule in Weldon v Neal
Legislation:
Rules of the Supreme Court 1971, O 21 r 5
Result:
Application to amend refused
(Page 2)
Representation:
Counsel:
Plaintiff : Mr J R Johnson
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Julian Johnson Lawyers
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Dye v Griffin Coal Mining Company Pty Ltd (1998) 19 WAR 431
Morgan v Banning (1999) 20 WAR 474
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Weldon v Neal (1887) 19 QBD 394
(Page 3)
1 WISBEY DCJ: On 17 July 2007 the Deputy Registrar ordered (inter alia) that the plaintiff have leave to amend the statement of claim in terms of the minute dated and filed 23 May 2007, subject to the damages claimed being restricted to loss consequent upon the injury to the plaintiff's femoral nerve. The defendant appeals against that order pursuant to r 15 of the District Court Rules 2005, the appeal being a rehearing of the application.
2 The statement of claim in its original form appears in the writ of summons dated 10 July 2003. It essentially alleges that on 14 June 1999 Dr Kenneth Digwood, an employee of the defendant, performed an abdominal hysterectomy during which a suction drain was inserted in the plaintiff's left inguinal area and removed on 16 June 1999. Specifically it is alleged that:
"7 In the course of the operation or alternatively as a result of the insertion and/or removal of the suction drain the plaintiff suffered injury to the left femoral nerve ('the injury').
Particulars of injury
Contusional injury to the left femoral nerve involving a lesion to the nerve, axonal loss and neuroma formation.
8. The injury was caused by the negligence of the employees or one or other of them in the performance of their duties in the course of the operation or alternatively in the insertion and or removal of a suction drain and for whose negligence the defendant is vicariously liable.
Particulars of negligence
- (a) Inflicting a lesion to the left femoral nerve.
(b) On the part of Dr Digwood, failing to warn the plaintiff of the risk of injury to the nerve.
(c) Failing to perform the operation in a professionally competent manner.
(d) Failing to exercise reasonable care and skill so as to avoid causing damage to the left femoral nerve.
(e) Res ipsa loquitur.
(Page 4)
- 9. Further, the injury was caused by the negligence of the defendant directly in:
(a) Failing to employ competent staff.
(b) Failing to provide any or any adequate training or instruction to employees in the performance of their duties.
(c) Failing to provide any or any adequate supervision of employees when carrying out a surgical procedure at the hospital."
4 On 23 May 2007, approximately eight years post-operation, the plaintiff sought leave to amend the statement of claim in a number of respects; but significantly so far as the application is concerned to allege that:
(a) the abdominal hysterectomy procedure carried with it certain risks including the risk of nerve damage; that the defendant was under a duty to warn the plaintiff of the operative risks prior to surgery; and that had it done so she would not have agreed to undertake the operative procedure. (Rogers v Whitaker plea) at [14] - [18].
(b) further or in the alternative Dr Digwood failed to correctly diagnose the plaintiff's medical condition and should not have recommended any form of hysterectomy but recommended an alternative medical procedure, at [19].
5 Clearly the proposed amendments raise new causes of action, being a breach of duty to warn the plaintiff of a material risk inherent in the proposed treatment; and/or negligence in advising that the operative procedure undertaken was appropriate. Each cause of action accrued more than six years prior to the application.
6 The limitation issue requires a consideration of O 21 r 5 of the Rules of the Supreme Court.
(Page 5)
7 Paragraph (1) provides that the Court may at any stage of the proceedings allow any party to amend his pleading on such terms as may be just.
8 Paragraph (2) provides that notwithstanding the application for leave to amend the pleading is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may grant leave if it thinks it is just to do so.
9 Paragraph (5) provides:
"An amendment may be allowed under paragraph 2 notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
10 In Dye v Griffin Coal Mining Company Pty Ltd (1998) 19 WAR 431 Owen J with whom Malcolm CJ and Kennedy J agreed, referred to Weldon v Neal (1887) 19 QBD 394 where Lord Esher MR said at 395:
"We must act on the settled rule of practice, which is that amendments are not admissible where they prejudice the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."
Owen J said at p 439:
'In light of the authorities, and as a matter of construction, I think the effect of the rules is that the rule in Weldon v Neal continues in force in truncated form, being qualified only to the extent that O 21 r 5 allows some amendments out of time for certain limited purposes. Relevantly, when
- confronted with a proposed amendment that seeks to add a cause of action that is otherwise statute-barred, the court has a discretion to allow the amendment under O 21 r 5(5) if the conditions set out in that rule are satisfied. The general discretion in O 21, r 5(1) is limited to that extent'."
11 At p 434 he said:
"I agree with the comment of the trial Judge that questions such as whether a claim is 'new' or whether it arises substantially from the same facts are largely and often questions of degree. This is essentially a matter of impression … It is no objection that some of the facts out of which the new cause of action arises are peculiar to it and that some of the facts out of which the old cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action: See Brickfield Properties Ltd v Newton [1971] 1 WLR 862 at 880; [1971] 3 All ER 328 at 342 - 343; Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 240 - 241."
12 The causes of action sought to be introduced by the amendment are founded in negligence and it is therefore necessary in each to establish duty, breach and damage. In each case the breach of duty alleged occurred prior to 14 June 1999 namely on or between 21 April and 11 May 1999 when the plaintiff consulted Dr Digwood, was assessed, her condition diagnosed, and advice given. The element of loss or damage occurred when the operative procedure was carried out and the injuries sustained. Thus in the original cause of action and the proposed new causes of action, the time of the loss and the damage suffered is identical. Does that however involve such overlap that it can fairly be said that the proposed new causes of action arise out of substantially the same facts as the old cause of action.
13 In Morgan v Banning (1999) 20 WAR 474 Owen J at p 476 defined the term "cause of action" in O 21, r 5(5) as meaning "the basket of facts which give rise to the right to approach the court for relief rather than as the description of the right to sue by reference to the old forms of action". Essentially Wheeler J appears to have been in agreement. The "basket of facts" which gives rise to the pleaded cause of action could not establish the proposed new causes of action which require an enquiry into and evidence of the state of medical knowledge prior to the operation and the
(Page 7)
- diagnosis made and advice given by Dr Digwood in the period 21 April to 11 May 1999. It cannot be said that the causes of action proposed now to be pleaded "arise out of substantially the same facts as the old cause of action". Were the position otherwise, having regard to the fact that Dr Digwood is 80 years old, has not been in clinical practice for six years, and would have to recall discussions and events occurring eight years ago, it would not have been appropriate to exercise discretion in favour of the plaintiff.
14 The application to amend is refused.
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