Reuben Abdel-Messih (by his next friend Raouf Abdel-Messih) v WA Country Health Service - [2006] WADC 14

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: REUBEN ABDEL-MESSIH (by his next friend RAOUF ABDEL-MESSIH) -v- WA COUNTRY HEALTH SERVICE [2006] WADC 14

CORAM: WILLIAMS DCJ

HEARD: 20 JANUARY 2006

DELIVERED : 16 FEBRUARY 2006

FILE NO/S: CIV 2558 of 2004

BETWEEN: REUBEN ABDEL-MESSIH (by his next friend RAOUF ABDEL-MESSIH)
Plaintiff
AND
WA COUNTRY HEALTH SERVICE
Defendant

Catchwords:

Limitation of actions - Torts and personal actions - Limitation Act 1947 (WA)

Legislation:

Hospital and Health Services Act 1927

Result:

Action statute-barred

Representation:

Counsel:

Plaintiff: Mr J Johnson
Defendant: Mr N Monahan

Solicitors:

Plaintiff: Julian Johnson Lawyers
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Alcoa of Australia Limited v SEC (WA) (1995) 17 WAR 112
Australian National Airlines commission v Newman (1987) 162 CLR 466
Smith v Australian National Line Ltd (1998) 159 ALR 431
State Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131
The Commonwealth v Introvigne (1982) 150 CLR 258

Case(s) also cited:

Brown v Minister of Education [2003] WADC 182
Cunningham v City of Wanneroo [2002] WADC 39
Holland v Board of Management of King Edward Memorial Hospital (1995) 14 SR (WA) 305
Lokan v Metropolitan Cemeteries Board (1997) 18 SR(WA) 345

WILLIAMS DCJ: This is the determination of a preliminary issue as to whether or not the action is statute barred pursuant to s 47A of the Limitation Act 1947 (WA) on the basis that:
"(a) that the parties agree that:
(i) the Plaintiff was born at the Port Hedland Regional Hospital ("Hospital") on 27 July 1994;
(ii)the Plaintiff was discharged from the Hospital on 2 August 1994;
(iii)from the Plaintiff's birth until his discharge from the Hospital, it was employees of the Board of the Hospital ("PHRH Board") acting in the course of their employment that would have done or omitted to do anything set out in the Amended Statement of Claim dated 13 December 2005 which could be relied upon by the Plaintiff to establish the Defendant's alleged vicarious liability (if any of these things could be proven to have occurred);
(iv)the Plaintiff's allegations of negligence are limited to that period;
(v)during that period, the PHRH Board had responsibility for the management and control of the Hospital pursuant to the Hospitals and Health Services Act 1927 (WA) ("HHSA"), the Hospital being a public hospital under the HHSA:
(vi)on 1 July 2002, the Minister for Health was incorporated under s 7 of the HHSA in the name WA Country Health Service, as the Board of hospitals including the Hospital, in which capacity he was vested with the material rights and liabilities of former Boards, including the former PHRH Board;
(vii)this action was commenced on 9 November 2004, without any leave of the Court or consent of the Defendant for the purposes of s 47A (2) and (3) of the Limitation Act 1947(WA);
(b)that the Court assumes (for the purpose of determining the preliminary issue only) that the facts set out at paragraphs 7-21 and 31 – 32B of the Plaintiff's Amended Statement of Claim dated 13 December 2005 are correct."
The Limitation Act s 47A provides as follows:
"47A. protection of persons acting in execution of statutory or other public duty
(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless:
(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued.
And for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues …
(4) (a)In this section "person" includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown."
The issue is to be determined by ascertaining the proper characterisation of the plaintiff's claim and to determine whether it falls within s 47A of the Limitation Act. That question revolves around whether the plaintiff's claim is "for an act done" or "neglect or default" by the defendant or its predecessor Board the PHRH Board "in pursuance or execution or intended execution of any act or of any public duty or authority or in respect of any neglect or default in the execution of the act, duty or authority", being the ambit of protection to "persons" entitled to rely upon s 47A. It is accepted by the plaintiff that if s 47A's terms would apply to any claim against the PHRH Board prior to its abolition it applies to the claim against the defendant. It is further accepted by the plaintiff that the PHRH Board and the defendant are "persons" for the purposes of the section.
The answer to this question depends upon the application of the now settled test adopted by Parker J in Alcoa of Australia Limited v SEC (WA) (1995) 17 WAR 112 approved by the Full Court in State Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131 and subsequently applied by the Full Court in Smith v Australian National Line Ltd (1998) 159 ALR 431 (see at 448, 450 per Pidgeon J); a test considered in the latter case to involve an identical approach to that of the High Court in Australian National Airlines commission v Newman (1987) 162 CLR 466 (see Smith v Australian National Line Ltd at 450):
"… the underlying and correct approach to be applied is not that of asking whether there is a public right for which there may be a correlative duty but rather whether the authority is exercising for the benefit of the public a public duty or authority which is not merely an incidental, ie subsidiary or auxiliary, power. This is not to say that the various factors identified in the cases, such as whether a particular activity is obligatory or merely permissible, are irrelevant to the determination of that question. A statutory function which is imposed on a public authority as a matter of positive duty, for example, is unlikely to be merely incidental to the authority's public function. Each case depends upon the particular functions imposed on the particular body, and it may be that what is merely incidental, ie subsidiary or auxiliary, power to one authority is essential to another. [Alcoa at 129 per Parker J]"
The plaintiff's submission is that there is no "act done" or "neglect or default" by the Board for which this action is brought. The plaintiff says that his claim is pleaded solely upon the defendant's legal responsibility as an employer for the breach of duty on the part of its servants. In this sense the claim is derivative. The defendant's only basis for liability is the liability of the PHRH Board's servants through their lack of care. The "acts" and "neglects/defaults" are those of the servants and not PHHB.
The Hospital and Health Services Act 1927 provides as follows:
"Section 2 -
…
"hospital" means an institution for the reception and treatment of persons suffering from illness or injury, or in need of medical, surgical or dental treatment or assistance, and includes a maternity home or maternity hospital, day hospital facility, nursing home or nursing post;
"hospital service" includes accommodation, maintenance, care, and all other services rendered, goods supplied or work done, at, by or on behalf of public hospital, in relation to the person in question;
"public hospital" means any hospital that is –
(a)       conducted or managed by –
(i)    a board constituted under this Act; or
(ii)   the Minister under this Act;
or
(b)       declared to be a public hospital under section 3;"
"Section 5A Duties of the Minister -
(1)It shall be the duty of the Minister to provide, to such extent as he considers necessary to meet all reasonable requirements –
(a)       hospital accommodation;
(b)hospital service, whether at a public hospital or, if necessary on medical grounds, elsewhere; and
(c)       health services"
"Section 18 Functions of hospital boards –
…
(2)The Minister may, after consultation with a hospital board, give to it directions as to the exercise of its functions, but no such direction shall be given concerning the nature of the medical treatment to be provided in relation to a particular patient."
"Section 19 Board may appoint officers and servants –
…
(2)A board may also from time to time employ or engage such medical officers and district nurses as it thinks fit for the purpose of attending sick persons elsewhere than in a public hospital; provided the circumstances of such persons are such as to bring them within the provisions of the prist paragraph of section 31."
"Section 31 Qualifications of person for admission to public hospital
(1)A person is to be admitted as a patient to a public hospital if in the opinion of a medical or other officer in charge the person requires treatment of the kind provided by the hospital."
It is quite apparent from those sections that the board of management of a public hospital, constituted under the Hospitals and Health Services Act has a statutory duty exercisable for the benefit of the public to provide care to persons admitted to the hospital: Hospital and Health Services Act s 15(2).
That is the PHRH Board's principal statutory duty and in my view can not be described as "incidental". It is at the core of the PHRH Board's public functions and the Board is entitled to the protection of the section.
The plaintiff relies upon the alleged conduct by PHRH board employees which occurred within the course of the activity of providing care to the plaintiff as an admitted patient.
In my view it makes no difference whether the defendant is sued on the basis of the PHRH Board's personal liability or vicarious liability.
The plaintiff's claim against the defendant is pleaded solely upon its legal responsibility as an employer for the breach of duty on the part of its servants. It is said that the pleaded "acts" and "neglects/defaults" should be considered those of the servants and not the PHHB.
A hospital authority owes a personal ("non delegable") duty to its patients: New SouthWales v Lepore & Anor (2003) 212 CLR 511 at par 23 per Gleeson CJ. However, the identification of a personal duty is only significant where the authority may not be liable on conventional principles of vicarious liability. (eg Lepore and also The Commonwealth v Introvigne (1982) 150 CLR 258). In an ordinary case where the alleged negligent conduct is that of an authority's employee it is unnecessary to seek to rely on any personal duty. In such a case the content of the vicarious liability will be identical to that of any personal duty: Lepore par 30 per Gleeson CJ.
In my view it is not the intention of s 47A to protect an authority where the plaintiff frames the cause of action in terms of its personal liability but not where the cause of action was framed in terms of its vicarious liability. The words used by s 47A are not susceptible of any limitation which would exclude vicarious liability.
It follows in my view that the action is statue-barred pursuant to s 47A of the Limitation Act.