Re: Forsyth v State of Qld - [1999] QSC 178

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.3870 of 1998
Before the Hon. Mr Justice Shepherdson
[re: Forsyth v State of Qld]
BETWEEN:
  KAY MARY FORSYTH
  Plaintiff
AND:
  STATE OF QUEENSLAND
  Defendant
REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 30 July 1999
CATCHWORDS: LIMITATION OF ACTION - TORT - application in 1999 for extension of time under s 31(2) Limitation of Actions Act 1974 - alleged negligence in April 1982 during birth of applicants second child when episiotomy performed - applicant experienced problems from August 1982 - consulted various doctors and on 30 April 1997 learned for first time that episiotomy had cut Bartholin’s duct and that this was the cause of her problems - respondent opposed application alleging insufficient evidence to prove failure to take reasonable care and severe prejudice in that midwife now had no recall of the episiotomy and who performed it.

Dwan v Farquhar (1988) 1 Qd R 234
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Counsel:Mr R Green for the applicant
Ms KT Magee for the respondent

Solicitors:Welsh & Welsh for the applicant
Moyles for the respondent

Hearing date:          20 July 1999
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.3870 of 1998
Before the Hon. Mr Justice Shepherdson
[re: Forsyth v State of Qld]
BETWEEN:
  KAY MARY FORSYTH
  Plaintiff
AND:
  STATE OF QUEENSLAND
  Defendant
REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 30 July 1999

The applicant plaintiff seeks leave pursuant to s 31(2)(b) of the Limitation of Actions Act 1974 that the period of limitation for her claim in negligence be extended to 30 April 1998.
Her claim is for personal injuries allegedly caused to her by the negligence of a person or persons attending her on the night of 15 April 1982 during her confinement resulting in the birth of her second child, Sarah Joy Gallifant at the Southport Public Hospital on 16 April 1982. The writ of summons in this action issued on 28 April 1998.
The plaintiff was born on 2 December 1957. She is the mother of Beth Iola Gallifant born at the Tweed Heads Hospital on 14 August 1980.
In her quite lengthy affidavit sworn 7 June 1999, the applicant has described in considerable detail events occurring in the delivery room at the Southport Public Hospital, in the early hours of 16 April 1982.
The essence of her complaint is that in the final stages of the birth a decision was made that the applicant required an episiotomy, that on two occasions a midwife present attempted to perform this procedure using two separate pairs of scissors each of which was blunt or malfunctioned so that the scissors did not cut and then, on a third occasion using a third pair of scissors, the episiotomy was performed.
The child was born shortly afterwards.
The applicant has recounted a number of subsequent attendances on various doctors because of problems (detailed in her affidavit) which she says she experienced in the area of the site of the episiotomy, the symptoms first appearing on or about August 1982. Since then the applicant and her then husband have divorced.
It is unnecessary to refer further to these attendances, but I note that according to her affidavit it was not until 30 April 1997 when she attended a Dr Vincent Flynn, a gynaecologist, practising at Noosaville, she learned for the first time that the episiotomy had cut through Bartholin's duct.
The applicant swears that she asked Dr Flynn about the episiotomy scar, that he told her the position of the scar was not common, that at her request he drew a diagram (exhibited to her affidavit) to show where the scar was, and that when she asked him how many women he had seen where an episiotomy had cut the Bartholin's duct, he replied "one in 10 or 20 years". According to the applicant:
"This is the first time a medical practitioner has indicated to me that there was a connection between the episiotomy and the symptoms with which I had been suffering, complaining of and seeking treatment for, since 1982."
Dr Flynn has sworn an affidavit confirming his examination of the applicant on 30 April 1997 at the request of a Dr Pisasale of the Family Planning Association at Maroochydore. He has sworn:
"3 On the 30th April 1997, I conducted an examination of Ms Forsyth as requested by Dr Pisasale. On examination I noticed an episiotomy scar. In my opinion the scar was far too lateral, in my opinion this can be a cause for dyspareunia. This is one of the symptoms of which Ms Forsyth currently complains."
He has also exhibited to his affidavit a photocopy of a letter (Exhibit VTF1) dated 30 April 1997 which he sent to Dr Pisasale. This reads in part:
"On examination today there is a small fold which runs from the fourchette to join the left labia majora but on the right side this fold disappears where the episiotomy scar is. The episiotomy scar was far too lateral and, according to the text book, this is often the cause of dyspareunia ... ."
Sub-section 31(2) of the Limitation of Actions Act 1974 relevantly provides:
"(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -
(a)that a material factor of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of the limitation period; and
(b)there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.
the court may order that the period of limitation for the action be extended ... ."
Here, the applicant by her counsel Mr Green, submits that the material fact of a decisive character was her knowledge, first gained on 30 April 1997 that the episiotomy had cut the Bartholin's duct, and that by reason of this cut there was a causal connection between the episiotomy and the ongoing difficulties she has experienced since about August 1982, details of which appear in her affidavit.
The respondent by its counsel Ms Magee, has opposed the application on three grounds. They are:
1.That there is insufficient evidence to establish a right of action in negligence;
2.That it cannot be said that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of limitation for the action;
3.That in the circumstances of this case it is not appropriate for the court to exercise its discretion in favour of the applicant.
As to the first of these, Ms Magee has submitted that neither the position of the scar as deposed to by Dr Flynn nor the cutting of Bartholin's duct has been shown to be due to lack of care on the part of the person performing the episiotomy.
Mr Green has submitted that the evidence of Dr Flynn that the scar is far too lateral is itself evidence of failure to take reasonable care and alternatively that Dr Flynn's evidence combined with the evidence of the applicant of the two failed attempts at episiotomy followed by a third successful attempt in the manner described by her in her affidavit will enable me to infer a failure to take reasonable care.
Mr Green relies on, and I accept the correctness of the following statement by Thomas J (as he then was) in Dwan v Farquhar (1988) 1 Qd R 234 at 239:
"The law does not encourage futile exercises ... an applicant is not required to fully prove his case in order to obtain an extension of time, but he must make it appear to the court that there is evidence to establish his right of action."
Some evidence from which failure to exercise reasonable care can at least be inferred must therefore be put before me. I do not have that evidence. I am not prepared to infer that Dr Flynn's evidence which I have set out above is sufficient to able a tribunal of fact to infer that there was failure to exercise reasonable care when the episiotomy was performed. According to the plaintiff's affidavit, when Dr Flynn told the plaintiff the episiotomy had cut the duct, she asked him how many women he had seen where an episiotomy had cut that duct and he replied "one in 10 or 20 years". This statement may suggest that the cutting of the duct was a comparatively rare event but a cutting of the duct has not been shown to indicate failure to take reasonable care. It would have been a comparatively simple matter for the applicant to have obtained a further affidavit from Dr Flynn, if he were prepared to swear to the fact that the cutting of the duct was itself an indication of failure to exercise reasonable care when performing an episiotomy. Mr Green declined to seek an adjournment to attempt to obtain such an affidavit, but in fairness to Mr Green, I suspect he may have taken this attitude because of the strength of the third ground relied on by the respondent. I add that I am not prepared to act on Mr Green's alternative submission as to evidence of failure to take reasonable care.
The applicant has failed to place before me, in compliance with sub-s 31(2)(b) sufficient evidence to establish her right of action apart from a defence founded on the expiration of a period of limitation.
This finding would suffice for me to dismiss the application. However, if I should be wrong in the view which I have taken in regard to the first ground, I now consider the third ground, namely that the present case is not an appropriate one for the court to exercise its discretion in favour of the applicant.
Ms Magee relies on the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. She argues that she has introduced evidence which shows that this action, if allowed to proceed, would result in significant prejudice to the respondent and that therefore in the circumstances the applicant has failed to discharge the burden lying on her of satisfying me that an extension beyond the limitation period would not result in significant prejudice to the present respondent.
I mention now the evidence relied on by Ms Magee and said to amount to prejudice in the respondent sufficient to justify my exercising my discretion against the applicant.
I have an affidavit of Stephanie Jane Moyle, sworn 19 July 1999. Ms Moyle is the principal of the firm of solicitors acting for the respondent. Exhibited to her affidavit is a photocopy of one page "of the reconstituted medical record of Kay Gallifant" (Exhibit SM1) [It appears the records are on microfiche]. The hearsay evidence in the affidavit discloses that a mid-wife named Betty McKellar informed Ms Moyle on 16 July 1991 that her handwriting appeared on Exhibit SM1, and that the handwriting which is hers reads:
"1 am - in established labour. BP 120/80. Pulse rate 72.
Foetal heart sounds 148. OS 5 cm dilated. Cervix fully effaced.
1.30am - spontaneous rupture of membrane. Moderate clear
liquor.
1.45am - normal vaginal delivery of 1 living female infant
born.
Intramuscular injection Syntometrine 1ml with anterior
shoulder.
3rd stage 1.50am. Placenta and membrane complete. Blood
loss moderate.
Episiotomy repaired with 20 chromic Dr London.
Blood pressure 110/70. Pulse 80."
Miss Moyle also swears that Ms McKellar informed her on 16 July 1999 and she verily believes that:
1.Betty McKellar has no independent recollection of attending to the plaintiff during the confinement the subject of the action;
2.Betty McKellar's review of the notes made in her handwriting has not given rise to any recollection of attending the plaintiff;
3.Betty McKellar has no recollection of carrying out the episiotomy on this patient.
Paragraphs 3 and 4 of Ms Moyle's affidavit read:
"3.I have, on behalf of the Defendant, sought from the Human Resource Management Division of the Gold Coast District Health Service which operates the Gold Coast Hospital, information in relation to the present location of Dr London referred to in the notes of the midwife, Betty McKellar. Such enquiry has been made in an attempt to ascertain further information in relation to the circumstances of the repair of the episiotomy.
4. To the date of swearing this Affidavit, I have been informed by the Defendant and verily believe that no records in respect of the name of Dr London have been located. Now produced and shown to me and marked "SJM2" is a copy of a facsimile transmission from the Human Resource Management Division of the Gold Coast District Health to me."
In Taylor the head note shows that the High Court of Australia (by a majority) held that in an application of the type before me, an applicant who satisfies the conditions in sub-s 31(2)(a) and (b) does not have a presumptive right to an order but still bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably and to do so must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant.
Taylor's case shows plainly that the prospective defendant bears an evidentiary onus of raising "any consideration telling against the exercise of the discretion" (see p 547 in the joint judgment of Toohey and Gummow JJ).
In the case before me the respondent has raised such a consideration. Once this has happened "the ultimate onus of satisfying the court that time should be extended remains on the applicant" (p 547 per Toohey and Gummow JJ.)
McHugh J (with whose reasons Dawson J agreed) put the matter slightly differently when (at p 551) he said:
"An applicant for an extension of time who satisfies those conditions [the two conditions laid down in s 31(2)] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires that it exercise the discretion in his or her favour."
Also, at pp 553 - 4, His Honour said:
"The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
McHugh J has introduced into the onus question the concept of "the justice of the case requiring the exercise at the discretion in the applicant's favour". I note that at p 544 Dawson J said (inter alia):
"The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant."
In Taylor there was a lengthy time - some 15 years - between the alleged negligence and the application made under s 31.
In the present case that delay is some 17 years.
Ms Magee has submitted that in the present case, I should not reinstate the applicant's right of action against the respondent who, by reason of delay in commencing the action, is and will be unable fairly to defend itself.
In effect she argues that the prejudice to the respondent is, to use the words of McHugh J (at p 548) likely to thwart a fair trial.
At p 548, His Honour said:
"Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application."
There is no evidence before me to rebut the allegations of the midwife Betty McKellar which I have set out at para 24 ante.
In my view the evidence before me shows that if the extension of time sought were granted and the action proceeded to trial then the respondent is now and will at trial be in a very serious position and will be seriously prejudiced in presenting any defence or answer to the applicant's claim by being unable to identify the person who performed the episiotomy and more importantly, a person who has any recall of actually performing that procedure. If that person were Betty McKellar she now has no recall of the event. Certainly, the handwriting of Betty McKellar shows that an episiotomy was repaired by Dr London, but the handwriting recorded in the applicant's medical records does not show by whom the episiotomy was performed.
In my view the delay in the present case is such that the prejudice which it has created in the respondent is significant and far from marginal. I note that at p 552 of his reasons for judgment, McHugh J, identified four broad rationales for the enactment of limitation periods. The second of these (at p 552) is presently relevant and it is:
"Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed."
In my view, and assuming that the plaintiff had satisfied the two conditions laid down in s 31(2), I hold that for reasons I have already given, the applicant has failed to show that the justice of the case requires me to exercise in her favour the discretion given by s 31(b).
The application must be dismissed. I therefore order that the application be dismissed and that the applicant pay the respondent's costs of and incidental to the application to be taxed. 42 I do not find it necessary to consider Ms Magee's second ground.