Pollock, Elaine Rosevear v Tulloh, Bruce and Echuca

[2010] VCC 51

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT SHEPPARTON
CIVIL DIVISION
DAMAGES – COMPENSATION

MEDICAL DIVISION

Case No. CI-05-03914

ELAINE ROSEVEAR POLLOCK	Plaintiff
v
BRUCE TULLOH	First Defendant
and
ECHUCA REGIONAL HEALTH	Second Defendant

---

JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Shepparton
DATE OF HEARING:	4 December 2009 and 29 January and 9 February 2010
DATE OF JUDGMENT:	19 February 2010
CASE MAY BE CITED AS:	Pollock, Elaine Rosevear v Tulloh, Bruce & Echuca Regional Health
MEDIUM NEUTRAL CITATION:	[2010] VCC 0051

REASONS FOR JUDGMENT

---

Catchwords: PRACTICE AND PROCEDURE – proceeding dismissed under Rule 34A.15 – application to reinstate the proceeding pursuant to Rule 34A.16 – application to extend the time for the service of the Writ pursuant to Rule 5.12(2).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Hutchinson	Nevin Lenne & Gross
For the Defendants	Mr M W Richardson	John Ball & Sons
HIS HONOUR:

1 In this application, the plaintiff seeks that this proceeding be reinstated pursuant to the provisions of Rule 34A.16 of the County Court Civil Procedure Rules 2008 (“the Rules”) and that the time for service of the Writ in the proceedings be extended pursuant to Rule 5.12(2) of the Rules.

2          A brief summary of the history of the proceedings is as follows.

3          On 7 November 2005, the plaintiff commenced the proceedings by filing a Writ and Statement of Claim. These documents were delivered to solicitors acting on behalf of each of the defendants early in 2006 however they were not served upon the defendants.

4 On 18 January 2007, the plaintiff was notified by the Court that the proceeding was to be dismissed pursuant to the provisions of Rule 34A.15(1).

5          On 23 January 2007, the plaintiff wrote to the Court advising that the matter was being “handled by the Health Services Commissioner”, that she wished the Writ to remain in place and seeking advice as to the steps which should be taken to achieve that end. In response, the plaintiff was advised by the Court that her Writ was valid for service for one year after the day it was filed and that the Writ may be extended by an application which could be made to the Court.

6 On 17 February 2007, no steps having been made by the plaintiff to extend the time for service of the Writ, the proceeding was dismissed pursuant to Rule 34A.15(1).

The Application to Reinstate the Proceeding

7 In exercising my discretion as to whether the plaintiff’s proceeding should be reinstated in circumstances in which the dismissal of the proceeding occurred by reason of the application of Rule 34A.15 of the Rules, I consider that I should exercise the discretion given to me by Rule 34A.16 if I am satisfied that:

(i)	the proceeding to be reinstated is not one which would be struck out for want of prosecution;
(ii)	the interests of justice require the reinstatement of the proceeding, having taken into account all relevant circumstances.[1]

[1]             The onus in this regard being upon the plaintiff – see Caruso v Jafer & Manno (VSC, No 6548 of 1998, unreported, 18 June 1998) per Mandie J.

8          In considering the requirement of the interests of justice, it is appropriate to consider all the circumstances which bear upon not only the circumstances in which the proceeding came to be dismissed, but also those which bear upon the application to have the proceeding reinstated, including the reasons and timing of that application. In this matter the relevant material can largely be found in the two affidavits sworn by the plaintiff in support of the application on 6 January 2010 (the first affidavit) and 18 January 2010.[2] The matters deposed to in each affidavit were not the subject of challenge by the defendants. In the first affidavit, the plaintiff stated:

[2]             The plaintiff’s second affidavit should be read in conjunction with the first affidavit as its purpose is merely to clarify dates referred to in the first affidavit. Whilst the plaintiff also relies upon an affidavit of her solicitor, Mr John Suta, dated 26 November 2009, other than in setting out the instructions conveyed to him by the plaintiff on the issue of liability and providing a limited chronology, the affidavit of Mr Suta did not address the issues relevant to the plaintiff’s application, namely the reason why no action was taken either to serve the plaintiff’s Statement of Claim in the proceedings upon the defendants or to extend the period during which it remained valid.

• That upon the advice of her counsellor she initially made a complaint to the Health Services Commissioner regarding the medical treatment provided to her by Mr Tulloh.

• That upon the advice of the Health Services Commissioner that she should organise a writ in order to protect her interests, she retained Mr Ritchie of Faram Ritchie Davies to act on her behalf, and was advised that the first step which should be undertaken was the obtaining of a certificate that she had suffered a greater than 5 per cent disability so as to entitle her to recover damages at common law in respect of pain and suffering. To this end the plaintiff was referred to Professor Kenneth Myers who, on 18 August 2005, assessed her as suffering a 40 per cent whole person impairment pursuant to the AMA Guides as to the Evaluation of Permanent Impairment (4th ed.).

• That on 11 November 2005, the plaintiff was advised by Mr Ritchie that a writ should be issued prior to 11 November 2005 for the purpose of protecting her interests but that the writ should not be served until the plaintiff had explored the possibility of resolving her -

“dispute through the Health Services Commission, then there would be no need to use the court proceedings. If, however, you cannot successfully resolve your dispute through the Health Services Commission, then your only fallback position will be to proceed by way of your County Court Writ”.

• That a Writ was filed on 8 November 2005 and was sent by mail to the solicitors acting for the second defendant on 2 February 2006, and the solicitors acting for the first defendant on 3 March 2006. The Writ was not served upon the defendants at that time however, upon the advice of Mr Ritchie.

• That on 11 October 2006, the plaintiff was advised by Mr Ritchie:

(i)  that she had no medical support or proof necessary to sustain a common law claim;

(ii) that he did not recommend service of the Writ which had been issued and that the plaintiff should pursue her complaint through the processes of the Health Services Commissioner.

•	That upon being advised by the Court that her Writ was about to expire, the plaintiff contacted Faram Ritchie Davies and was advised that she could make an application to have the Writ reinstated and that the costs associated with that application would be in the vicinity of $600.
•	That on receiving this advice, a decision was made on the basis of advice given to her by Mr Ritchie that she should pursue her application with the Health Services Commissioner as the onus was upon her to prove negligence and that until medical support was obtained that Mr Tulloh or the Hospital were negligent, Mr Ritchie was not prepared to
“run the case to trial because of the costs risks to me if I lost the case and I was ordered to pay the defendants’ costs”.
•	That on 23 February 2007, the plaintiff received a letter from Faram Ritchie Davies advising her that her proceeding had been dismissed but that

“it is still possible to make an application for the proceedings to be

reinstated”.

• That a conference between the plaintiff, the Director of Nursing, the Director of Medicine and the Chief Executive Officer of the Echuca Hospital and Mr Mark McPherson, representing the Health Services Commissioner, took place on 10 December 2007. Following the conference, the Health Services Commissioner discontinued its investigation of the plaintiff’s complaint.

• That following the discontinuance of the involvement of the Health Services Commissioner, because the plaintiff was adamant that Mr Tulloh had not provided her with appropriate warnings as to the possible adverse complications associated with the proposed medical procedure, the plaintiff:

“Wanted to vigorously persist with my claim and accordingly, I made a complaint to the Medical Practitioners Board of Victoria. I initially made a complaint to the Medical Practitioners Board prior to the Health Services Commissioner completing the conciliation process but the Medical Practitioners Board told me I should wait until I finalise my complaint to the Health Services Commissioner and accordingly, I made a second complaint to the Medical Practitioners Board after the Health Services Commissioner was unable to assist me further.”[3]

[3]             Whilst no explanation is given by the plaintiff as to the thought process behind her decision to lodge a complaint with the Medical Board, I interpret her statement that her complaint to the Medical Board arose by reason of her desire to persist with her claim as indicating that she considered the Medical Board to be a means of achieving that result.

• That the plaintiff contacted the Medical Practitioners Board on 10 August 2008.[4] The Board initially made a finding which was not critical of Mr Tulloh’s management. This resulted in the plaintiff seeking a review of the decision which was eventually undertaken in the course of a hearing by the Professional Standards Panel which was conducted on 3 September 2009. On 17 September 2009, the Panel delivered a finding that Mr Tulloh had engaged in unprofessional conduct in failing to fully inform the plaintiff of the risks involved in the procedure performed by him. [4]             The plaintiff first contacted the Medical Board on 18 September 2007, at which time she was told that she should finalise matters with the Health Services Commissioner before making a complaint to the Board.

9          As to the reasons for which the Writ in these proceedings was not served, the plaintiff deposed :

“I am a lay person with no legal training. I attended Faram Ritchie Davie … in order to arrange a writ as I had been advised to do so by the Health Services Commissioner because of time limits and in order to protect my interests. It is not my fault that the writ was not served as such because at all material times, I wanted Mr Ritchie to arrange for the writ and go through the court system. My intention at all material times was to go through all avenues and to go through with my claim. I have persisted vigorously and it has taken a lot of time, energy and money and it has not been easy on me to say the least.”[5]

[5]             paragraph 24 of the first affidavit.

10        In June 2008, the plaintiff contacted Maurice Blackburn Cashman, who advised her by letter dated 28 July 2008 that her proceedings were “out of time”, that an application would be required for permission to bring proceedings and that the plaintiff would be required to meet the costs associated with the application which would be between $5000 and $10,000. On 2 August 2008, the plaintiff responded to the request for funding made by Maurice Blackburn Cashman, advising them that:

“The financial costs quoted by you are out of our range, we, like so many

others, are battling drought conditions”

and requested that firm to return her files.

11        It is clear that the issue as to whether the plaintiff has shown a good reason why the Writ should be reinstated is a question of fact to be determined in the circumstances of the particular case.

12        In the present case, I am satisfied that the first affidavit establishes:

(i)	that the plaintiff has suffered an injury of considerable consequence as the result of the treatment the subject of the proceeding[6] and that she has always maintained a genuine belief that the warnings provided to her by Mr Tulloh were inadequate, in that the risks associated with the operative procedure which he had recommended to her were not fully explained to her;
(ii)	that she relied upon advice given to her by her solicitor, Mr Ritchie, that she should not serve the Writ issued in this proceeding initially because she should pursue the investigation which was being undertaken by the Health Services Commissioner as that might provide her with the result she sought, and subsequently, because the lack of medical support for her case meant that she would probably fail to establish negligence on behalf of the defendants;[7]
(iii)	that the plaintiff was informed that it was possible to make an application for the reinstatement of the proceedings. I interpret her unqualified statement to this effect in paragraph 30 of the first affidavit, together with her statements at paragraph 27 of that affidavit, to convey the extent of the advice given to her namely:

[6]             Professor Myers has assessed the plaintiff as suffering from a whole person impairment resulting from

[7]             This advice, insofar as it related to the informed consent aspect of the plaintiff’s proceedings, was clearly incorrect, however I do not consider that this fact should tell against the plaintiff’s application: see Irving v Carbines [1982] VR 861

(a)	that no relevant advice was given to the plaintiff as to any action which should be taken for the purpose of safeguarding her entitlement or securing an order for reinstating the Writ other than the matters deposed by her in those paragraphs of the first affidavit;
(b)	that no advice was given to the plaintiff as to any obligation upon her to serve the Writ without delay or upon the issues which were relevant to the success of any application to be made by her in the future to have the writ reinstated;[8]

[8]             Notwithstanding the obvious inadequacy of the legal advice the plaintiff received in this regard, I do not consider that this should tell against the plaintiff’s application: See Irving v Carbines (supra).

(iv)   that the plaintiff regarded the inquiry by the Health Services Commissioner as an alternate means of obtaining the relief she sought with respect to the alleged medical mismanagement she had suffered and that she regarded her application to the Medical Practitioners Board as a means by which she could further advance her claim.[9]

(v)     that, having regard to the service upon their solicitors of the Statement of Claim in 2006, the involvement initially of the Health Services Commissioner[10] and subsequently the Medical Board,[11] the allegations the subject of this proceeding, together with the relevant evidence, are likely to have remained to the fore in the mind of the first defendant[12] and that it is unlikely that either of the defendants will be exposed to general prejudice which would impact in a manner of any significance to the conduct of their defence of this proceeding.[13]

[9]             I am of the opinion that recourse to that process should be encouraged as an appropriate method of alternative dispute resolution.

[10]           This was concluded on or about 10 December 2007.

[11]           The Medical Board conducted a hearing which commenced on 2 September 2009 in which Mr Tulloh gave evidence. The Board subsequently delivered its finding on 16 September 2009.

[12]           In this regard, the mind of the first defendant is also that of the second defendant given the nature of the pleadings against them.

[13]           No allegation of the existence of specific prejudice is made by either of the defendants in this matter.

13        In the circumstances, I am satisfied that the reasons given by the plaintiff for her failure to serve the Statement of Claim in this proceeding when combined with my finding that the defendants are unlikely to be exposed to prejudice in defending the proceedings are such that, subject to being satisfied that the proceedings are not likely to be struck out for want of prosecution, it is appropriate that an order be made reinstating the proceedings.

Would the Claim, if reinstated, be stuck Out for Want of Prosecution?

14        I am satisfied that the cause of action pleaded by the plaintiff is such that:

[14]           Dey v Victorian Railways Commissioners (1949) 78 CLR 62, per Dixon J. at p.91

(i)

if the allegations made by her as to the deficiency in the warning provided to her by the first defendant, together with the consequences of the failure to provide that warning are accepted, the plaintiff would establish her cause of action against the defendants;

(ii)

notwithstanding the fact that the plaintiff is not in possession of any evidence at the present time to support her allegation that the procedure performed by the first defendant involved a failure to exercise an appropriate level of surgical technique, it is not appropriate to describe this aspect of the plaintiff’s claim as being “absolutely hopeless”[14] such as would warrant the matter being dismissed for want of prosecution.

15        In these circumstances, I do not consider that the plaintiff’s claim, if reinstated, would be likely to be struck out for want of prosecution by reason of the fact that it does not disclose the cause of action against the defendants.

16        It is submitted on behalf of the defendants that the delay by the plaintiff in prosecuting her case is a delay which should be characterised as being inordinate and inexcusable; that the passage of time since the happening of acts the subject of the proceeding exposes the defendants to general prejudice associated with the inevitable deterioration in the quality of the evidence which is available to them to defend the proceeding, and that for these reasons the proceeding is likely to be struck out for want of prosecution if it is reinstated.

17        Whilst in some cases it may well be argued that the passing of some four years from the date of the issuing of the proceedings and some seven years from the events the subject of the proceeding are circumstances which would inevitably result in prejudice being occasioned to a defendant who is faced with such a delay, I am satisfied that it is unlikely that either of the defendants will be exposed to such prejudice, having regard to the circumstances which pertain in this instance, namely:

[15]           The date upon which a complaint was made by the plaintiff to the Health Services Commissioner.

[16]           The approximate date upon which the first defendant gave evidence at the hearing conducted by the Professional Standards’ Panel convened by reason of the continued complaints made by the plaintiff as to the adequacy of the advice given to her by the first defendant upon which she relied in making a decision to undergo the surgery the subject of this proceeding.

• that the solicitors acting on behalf of the defendants were provided with the plaintiff’s Statement of Claim early in 2006 and at that time the defendants had notice of the full ambit of the complaints being made against them

• that between 24 May 2005[15] and 2 September 2009,[16] the allegations made by the plaintiff against the first defendant and his response to those allegations have been constantly to the fore given the activities of the Health Services Commissioner and also the Medical Board, such that it is unlikely that any general or specific prejudice would be occasioned to the defendants of a degree sufficient to warrant an order dismissing the proceeding for want of prosecution on that basis.

18        Further, the evidence satisfies me that whilst there has been a considerable delay by the plaintiff in prosecuting this proceeding, the reason for that delay involved, initially, an attempt by the plaintiff to explore the possibility of achieving an alternative means of resolving the proceeding by the intervention of the Health Services Commissioner, and thereafter, an attempt to obtain the evidence she considered necessary to pursue the proceeding[17] through the investigation undertaken by the Medical Board.

[17]           Relying upon the legal advice to which I have earlier referred.

19          In these circumstances:

(i)	whilst I consider that there has been a significant delay in prosecuting this matter, I do not consider that it is appropriate to describe the delay as being inordinate or inexcusable given my findings as to the reasons for that delay;
(ii)	I am not satisfied that the delay which has occurred is such that in the circumstances of this case it has given rise to a substantial risk that it is not possible to have a fair trial in the action.

20        Accordingly, I do not consider that the proceedings are likely to be struck out for want of prosecution should the proceedings be reinstated.

Should an Order be made that the Writ be Renewed?

21        In dealing with the application made by the plaintiff to extend the period during which her Writ may be issued, the following principles are applicable to the application:

(i)	it is the duty of the plaintiff to serve a writ promptly;[18]
(ii)	the onus is upon the plaintiff of showing good reason for extending the period of validity of the writ;[19]
(iii)	the Court has a wide and unfettered discretion in selecting and weighing the relative importance of the factors relevant to the application;[20]
(iv)	the power to extend should only be exercised for good reason;[21]
(v)	in every case care should be taken to see that the renewal will not prejudice any right of the defence then existing;[22]
(vi)	there is no rule that a defendant acquires an absolute right to immunity when a writ issued within the limitation period is not served. There must always be good reason for the grant of an extension and, if the application is made after the period has expired, the issue as to whether the defendant will be exposed to any prejudice or injustice is one of significance;[23]
(vii)	there is a general rule that the wish of a party to await the outcome of some other proceeding is not a good reason for extending the validity of a writ.[24]

[18]           Finlay v Littler [1992] 2 VR 181

[19]           Irving v Carbines [1982] VR 861

[20]           Savcor Pty Ltd v Catholic Protection International APS (2005) 12 VR 639

[21]           Savcor Pty Ltd v Catholic Protection International APS (supra)

[22]           Finlay v Littler (supra)

[23]           Ramsay & Anor v Madgwicks (a firm) & Anor [1989] VR 1

[24]           Savcor Pty Ltd v Catholic Protection International APS (supra)

22        In setting out my findings upon the issues as to:

(i)	whether the proceedings should be reinstated; and
(ii)	if reinstated, whether it is likely that the proceeding would be dismissed,

I have considered and made findings as to each of the matters which I am required to take into account in determining whether an order should be made that the Writ be renewed, with the exception of the relevance of the plaintiff’s actions in awaiting the outcome of the complaints made to the Health Services Commissioner and the Medical Board before making this application.

23        Whilst the plaintiff’s decision to await the outcome of the independent processes to which I have referred potentially tells against her in this application, it is only one of the matters which I am required to take into account. In considering the relevance of the issue, when account is taken of my findings as to the plaintiff’s purpose in pursuing her complaints to the two bodies involved, in the context of the encouragement given to members of the community by the Parliament to employ the facility provided by the Health Services Commissioner as a means for resolving disputes between themselves and their treating medical practitioners, I do not consider that this factor should be accorded any significant weight in the circumstances of the present case.

24        For the reasons which I have earlier set out, I am satisfied that an order should be made extending the date upon which the Writ in this proceeding may be validly served for a period of twenty-eight (28) days from the date of publication of these reasons.

25        I reserve to the parties liberty to apply generally as to the costs of this application.

- - -

her injuries of 40 per cent.