Shelton v Australian Hospital Care Pty Ltd

[1991] TASSC 191

Serial No B77/1991

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Shelton v Australian Hospital Care Pty Ltd [1991] TASSC 191; B77/1991

PARTIES:  SHELTON, Peter John
  v
  AUSTRALIAN HOSPITAL CARE PTY LTD
  Trading As ST HELEN'S HOSPITAL

FILE NO:  M307/1991
DELIVERED ON:  23 December 1991
JUDGMENT OF:  Slicer J
CATCHWORDS:

Practice & Procedure—Limitation Act 1974, s5—Delay of Solicitor.

Judgment Number:  B77/1991
Number of paragraphs:  18

Serial No B77/1991
File No M307/1991

PETER JOHN SHELTON v AUSTRALIAN HOSPITAL CARE PTY LTD
Trading as ST HELEN'S HOSPITAL

REASONS FOR JUDGMENT  SLICER J

23 December 1991

1. This is an application for leave to extend time for the commencement of proceedings for an action in the Court of Requests. The application is made pursuant to s5(3) of the Limitation of Actions Act 1974 and the effect of that section, together with s46 of the Acts Interpretation Act, requires the matter to be determined by a judge of the Supreme Court.

Facts

1. The cause of action alleged by the plaintiff occurred on 29 March 1988 and arose from alleged negligent treatment of a finger injury at the St Helen’s Hospital on 29 March 1988. There is some evidence that the plaintiff may not have been aware of the consequences of the treatment for some little time thereafter, but if so, the time would remain outside the limitation period. Accordingly, it is not necessary for me to determine the point raised in GRE Insurance Limited v Bristile Limited noted in (1991) 6 ANZ Insurance Cases 61–078, at pp77,257 and 77,260.

1. A week later the plaintiff attended a general practitioner (not a member of the hospital staff) for further treatment. Apparently he began to experience discomfort and some time in October 1988 consulted a different medical practitioner who referred him to the Royal Hobart Hospital where he was examined and assessed by Mr W B Law. Mr Law was critical of the plaintiff in his delay in consulting "some doctor for further advice rather than sit by and allow progressive stiffness". The delay attributable to the plaintiff would be between 3 – 5 months, but it may be that he believed the condition of his finger might improve. I do not regard his delay as unduly significant to my determination.

1. Following his examination by Mr Law, it was found necessary to amputate the finger at the metacarpa phalangeal joint.

1. On 13 December 1988 the plaintiff consulted a solicitor, Mr D J Parkinson. On 23 December 1988, legal assistance was granted for an investigation and report. Some fourteen months went past until, on 20 February 1990, the solicitor took instructions, during which it was discovered that the plaintiff had become unemployed and it was necessary to make a fresh application for legal assistance to the Australian Legal Aid Office. On 14 March 1990 that office granted assistance for a further investigation and report. In May and June various medical reports and materials were obtained, and on 19 July 1990 aid was granted for the purpose of obtaining advice of counsel. This was not sought until 4 December 1990, but provided on 14 December.

1. Following the receipt of additional medical reports, further advice was sought from counsel on 21 February 1991, such advice being received on 25 February. The plaintiff, having instructed his solicitor to commence proceedings in the Court of Requests on 11 March 1991 (still within the limitation period), made enquiries of his solicitor as to the progress of his case in April, June and July. Despite that, proceedings were not commenced until 5 August 1991. It says little for the diligence of the solicitor that the reason given for the time of the commencement of the action was:

"I formed the mistaken view that the time limited to commence proceedings in this matter would run until 12th October, 1991, that being the third anniversary of the date of the amputation of the applicant‘s finger. I believe that I came to this view because I thought that that was the date of the injury. I was first alerted to the problem by the defence of the secondnamed Defendant, which was filed on 15th August, 1991."

1. No explanation is proffered in the affidavit of Mr Parkinson (the sole affidavit material filed in support of the application) to explain the delay which occurred between December 1988 and February 1990 and from July 1990 until December 1990.

1. I am satisfied that the major responsibility for the delay lies with the plaintiff’s solicitor.

Cause of action

1. It is not appropriate in a case such as this to analyse the nature of the case against the defendant. There is, in my opinion, sufficient material contained in the medical reports of Mr Law to warrant a finding that the plaintiff has an arguable case.

Delay and prejudice

1. It was an agreed fact between the parties that the doctor who had treated the plaintiff within a week of the hospital visit had died in early January 1990 and that any right on the part of the defendant to claim contribution had been extinguished by the operation of s27 of the Administration and Probate Act 1935. However, the death occurred before the limitation period expired and would have constituted a problem for the defendant even if the action had been commenced in March 1991.

1. The other prejudice claimed is that generally attributable to delay and no specific form was averred. The defendant hospital was made aware of the possibility of a claim based on negligence on 23 May 1990, and in fact provided a medical report on 4 June 1990. I do not regard the prejudice suffered by the defendant as being sufficient to cause me to exercise my discretion adversely to the plaintiff.

Conclusion

1. There was delay, most of which is attributable to the plaintiff‘s solicitor. Such delay, whilst not necessarily affording relief, is a significant factor to be taken into account.

Motor Accidents Insurance Board v Duc Thang Lee, Full Court Serial No 67/1989.

1. There is prejudice to the defendant but not of such a nature as to preclude the plaintiff from his right to pursue a cause of action.

1. The plaintiff has an arguable case.

The Nominal Defendant v Hall Serial No 33/1965.

1. The time sought from the expiration of the limitation period until the actual commencement of the proceedings is not great.

1. Accordingly, I will give leave to the plaintiff for an extension of time to commence his action.

1. I have been advised by counsel that there are complications which could arise from any order which I may make in granting an extension of time. These complications arise out of the fact that proceedings were commenced in the Court of Requests on 6 August 1991 and a default judgment entered in favour of the plaintiff on 3 September 1991.

1. I will hear counsel in relation to any consequential orders necessary to give effect to my determination. I will hear counsel in relation to the question of costs.