| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SCOTT & ANOR -v- MARSH & ANOR [2004] WADC 127 CORAM : MULLER DCJ HEARD : 21 JUNE 2004 DELIVERED : 28 JUNE 2004 FILE NO/S : CIV 1326 of 2001 BETWEEN : PAMELA SCOTT First Plaintiff
JAIMEE TABITHA HALE, EMMA SALLY HALE, CHRISTINE ELIZABETH SCOTT, BENJAMIN JAMES HALE, WILLIAM GORDON SCOTT, ZACHARY ADAM HALE, KATIE ERIN HALE, SEAN THOMAS SCOTT, JESSICA ANNE SCOTT AND SAMANTHA JOY SCOTT all infants by their Next Friend PAMELA SCOTT
Second Plaintiffs
AND
PETER FREDERICK MARSH
First Defendant
ST JOHN AMBULANCE AUSTRALIA (WA) INC
Second Defendant
FILE NO/S : CIV 2346 of 2003 BETWEEN : PAMELA SCOTT
(Page 2)
JAIMEE TABITHA HALE, EMMA SALLY HALE, CHRISTINE ELIZABETH SCOTT, BENJAMIN JAMES HALE, WILLIAM GORDON SCOTT, ZACHARY ADAM HALE, KATIE ERIN HALE, SEAN THOMAS SCOTT, JESSICA ANNE SCOTT AND SAMANTHA JOY SCOTT all infants by their Next Friend PAMELA SCOTT
Second Plaintiffs
AND
MARK ALEXANDER IRELAND AND BERNARD EDWARD F HOCKINGS
First Defendants
HOCKINGS & IRELAND PTY LTD T/AS MOUNTS BAY CARDIOLOGY (ACN 009 370 147)
Second Defendants
Catchwords: Appeal against Deputy Registrar's decision dismissing application to consolidate two separate actions - Deceased died from heart attack following professional advice and treatment from general practitioner in first action and cardiologist in second action - Alleged negligence on part of both general practitioner and cardiologist - Whether claim for damages by dependants arising out of deceased's death constitute single cause of action - Whether questions of law and fact justify consolidation of actions
Legislation: Nil
Result: Appeal dismissed
(Page 3)
Representation: CIV 1326 of 2001
Counsel:
First Plaintiff : Mr B L Nugawela
Second Plaintiffs : Mr B L Nugawela
First Defendant : No appearance
Second Defendant : Ms C A Elphick
Solicitors:
First Plaintiff : Friedman Lurie Singh & D'Angelo
Second Plaintiffs : Friedman Lurie Singh & D'Angelo
First Defendant : Not applicable
Second Defendant : Phillips Fox
CIV 2346 of 2003
Counsel:
Plaintiff : Mr B L Nugawela
Second Plaintiffs : Mr B L Nugawela
First Defendants : Mr P A Tottle
Second Defendants : Mr P A Tottle
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Second Plaintiffs : Friedman Lurie Singh & D'Angelo
First Defendants : Tottle Partners
Second Defendants : Tottle Partners
Case(s) referred to in judgment(s):
Bellview Investments Pty Ltd v Deans Investments Pty Ltd; BC9707282; NTSC; 18 December 1997 Case(s) also cited:
Nil
(Page 4)
1 MULLER DCJ: This is an appeal by the appellant (plaintiff) against the decision of Registrar Hewitt on 3 May 2004 dismissing an application to consolidate two actions numbered 1326 of 2001 and 2346 of 2003. The first and second plaintiffs are the plaintiffs in both actions. The defendants in each action are different. In action 1326 of 2001 the first defendant is Peter Frederick Marsh and the second defendant is the St John Ambulance Australia (WA) Inc. In action 2346 of 2003 the first defendants are Mark Alexander Ireland and Bernard Edward F Hockings and the second defendant is Hockings & Ireland Pty Ltd (t/as Mounts Bay Cardiology).
2 The facts common to both actions are as follows. On or about 6 October 1997 the deceased, who was the father of the first and second plaintiffs named in both actions, was taken by ambulance to Fremantle Hospital suffering from chest pains. Tests were performed and the deceased was discharged after being advised to see his general practitioner for further tests. The deceased consulted his general practitioner, the first defendant in action 1326 of 2001 on or about 7 October 1997 and was referred to a cardiologist, the first defendants in action 2346 of 2003, for a stress test to be undertaken. Following this test the cardiologists allegedly gave the deceased's general practitioner a verbal report on 10 October 1997 that the stress test had proved negative. On the same date the general practitioner allegedly advised the deceased of this result. Between 10 October and 21 October 1997 the cardiologists provided a written report to the general practitioner which, contrary to the earlier alleged verbal report, stated that the stress test was inconclusive. The general practitioner saw the deceased again on 21 October 1997, informed him of the written report and said he believed the continuing pain was muscular in nature. On the following day the deceased died after suffering a heart attack. 3 The second defendant in action No 1326 of 2001 is alleged to have collected the deceased by ambulance after his heart attack and transported him to the Joondalup Health Campus prior to his death.
The law applicable to consolidation 4 The criteria relevant to the exercise of the Court's discretion in an application for consolidation was set out by Thomas J in Bellview Investments Pty Ltd v Deans Investments Pty Ltd; BC9707282; NTSC; 18 December 1997 and are as follows:
(Page 5)
(a) Are there common questions of law or fact, or a common transaction or series of transactions, of sufficient importance which renders it desirable that the whole of the matters should be disposed of at the same time; (b) is it convenient that the actions be consolidated in order to avoid a multiplicity of actions and ensure savings of time and cost; (c) is the court satisfied that the consolidation is unlikely to result in unfairness to any party, or to prejudice a party's ability to conduct their case; (d) will the consolidation be conclusive to a just resolution of the issues between the parties; (e) the Court should have regard to any relevant practical matters which may make it inexpedient to consolidate the proceedings.
Commonality of issues and facts 5 While there are some material facts common to both actions the issues relating to each are quite different. This difference is clear from the pleadings. In the statement of claim relating to action 1326 of 2001 the first defendant is said to have been negligent in failing to advise, treat and manage the deceased's condition to the standard of a reasonably competent practitioner between 6 October 1997 to 22 October 1997. The particulars of negligence relied upon by the plaintiffs are as follows:
"Particulars of first defendant's negligence
11.1 failure to correctly diagnose the deceased's medical condition; 11.2 failure to conduct further investigations and/or tests including failure to order radioactive exercise test and/or an exercise echocardiogram; 11.3 failure to refer the deceased to a cardiologist in light of his continuing symptomatology; 11.4 failure to provide appropriate medical treatment and/or care timeously or at all.
(Page 6)
Further particulars will be provided prior to trial." 6 Turning to action 2346 of 2003 it is claimed that the first defendants owed the deceased a duty of care to advise, treat and test his condition to the standard of a reasonably competent cardiologist. The particulars of negligence relied upon are as follows:
"Breach of first defendants' duty of care
11.1 failed to perform a conclusive stress test; 11.2 performed an inconclusive stress test; 11.3 failed to advise the general practitioner expeditiously, that the results of the stress test were inconclusive; 11.4 failed to arrange a second stress test; 11.5 provided or caused to be provided the incorrect verbal report (referred to in 9.8, 99 and 9.10 above) to the general practitioner; 11.6 delayed in providing a written report to the general practitioner; 11.7 gave an incorrect result or interpretation of the stress test; 11.8 failed to ensure that the staff employed or engaged by the Second Defendant (other than themselves) correctly performed and interpreted the results of the stress test and forwarded this to the general practitioner expeditiously and without delay, or alternatively, failed to provide appropriate warnings to the general practitioner expeditiously." 7 Mr Nugawela, who appeared as counsel for the plaintiffs, submitted there was only one cause of action against all defendants. It was contended that the claim for damages by the deceased's dependants following his death constituted a single cause of action against all the named defendants in both actions. I am unable to accept this submission. The cause of action in each instance is quite different. The only common feature is that the plaintiffs are relying upon the alleged negligence of the general practitioner and the cardiologist. But that in itself is not sufficient to justify consolidation. Proof of negligence in each instance will involve separate issues of law and fact. The evidence necessary to prove
(Page 7)
negligence in the one instance will be quite different to the evidence required to prove negligence in the other. The only facts common to both actions is the referral of the deceased by the general practitioner to the cardiologist and the alleged receipt by the general practitioner of a verbal and later a written report from the cardiologist. These common facts certainly do not link the two actions in a way that makes it desirable that all the matters be disposed of at the same time. However significant the factual links may be, and I certainly do not believe they are as significant as the plaintiff now alleges, they are overwhelmingly displaced by the differences in the two causes of action and the different evidence needed to establish each cause. I am not satisfied these common facts justify joinder of the two causes of action. I should also mention that there is no common issue between St John Ambulance, the second defendant in action 1326 of 2001, and the first and second defendants in action 2346 of 2003. The issues relating to the claim against St John Ambulance are quite distinct and cannot be linked in any way with the issues of law and fact relied upon in action 2346 of 2003.
Possible prejudice to defendants 8 I understand that action No 1326 of 2001 is ready for trial. That is not the case with action 2346 of 2003. According to the information before me the plaintiffs have still to respond to the defendants' request for further and better particulars and the defendants have filed a chamber summons seeking a springing order relating to the plaintiffs' failure to comply with the request. I have also been told that expert evidence will need to be adduced at the trial and orders have yet to be sought and made in relation to this testimony. I believe it is inappropriate and undesirable to delay the one action indefinitely until such time as the second action is ready to proceed. Such a delay might be substantial and obviously has the potential to prejudice the defendants in the action that is now ready to go to trial. 9 I also agree that the joinder of the two actions is likely to increase the length of the trial substantially to the prejudice of the second defendant in action No 1326 of 2001.
Conclusion 10 On a balance of convenience I believe it would be inappropriate to consolidate the two actions. This is not a situation where consolidation would remove double litigation involving the same facts and issues. The
(Page 8)
facts and issues are different. It is also not a situation where the result in one action would compromise or be potentially inconsistent with the result in the other. 11 I am satisfied that the balance of convenience dictates each action ought to be tried separately. 12 I would dismiss the appeal. |