Stokes v State of Tasmania
[2002] VSC 88
•4 April 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7266 of 2001
| ANGIE STOKES | Plaintiff |
| v. | |
| THE STATE OF TASMANIA | Defendant |
---
JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 MARCH 2002 | |
DATE OF JUDGMENT: | 4 APRIL 2002 | |
CASE MAY BE CITED AS: | STOKES v. STATE OF TASMANIA | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 88 | |
---
CATCHWORDS: Limitation of Action – Extension of period – Error by plaintiff's solicitor concerning identification of defendant – No prejudice to defendant – Plaintiff acting promptly and responsibly – Limitation Act 1974 (Tas), s.5.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Sandbach | Slater & Gordon |
| For the Defendant | Mr. C. Blanden | Herbert Geer & Rundle |
HIS HONOUR:
This is an application by the plaintiff Angie Stokes seeking an extension of time within which proceedings may be brought pursuant to s.5 of the Limitation of Actions Act 1974 (Tas).
The background to the application may be summarised as follows.
On 21 August 1998 the plaintiff gave birth to a daughter.
By 25 August 1998 the condition of the plaintiff had become such that she was admitted to the North West Private Hospital in Tasmania, a hospital conducted by a company called Healthscope Limited.
On 12 September 1998 the plaintiff was transferred to the North West Regional Hospital in Tasmania, a hospital conducted and controlled by the State of Tasmania.
The plaintiff remained in the North West Regional Hospital until 19 September 1998 when she was discharged. However, the following day the plaintiff was re-admitted to the hospital.
On 24 September 1998 the plaintiff developed hypokalaemia and was commenced on intravenous potassium replacement. It is alleged by the plaintiff that her potassium levels were correctly maintained until about 28 September. Thereafter the plaintiff's potassium levels were not monitored and fell to a low level.
On 30 September 1998 the plaintiff suffered cardiac arrest. It is the opinion of the plaintiff's medical expert that the plaintiff's low potassium level was a major factor in precipitating her cardiac arrest.
On 8 October 1998 the plaintiff was transferred from the North West Regional Hospital to the Royal Melbourne Hospital in Victoria.
On 14 October 1998 the plaintiff was discharged from the Royal Melbourne Hospital.
On 2 December 1999 the plaintiff consulted her present solicitors with a view to seeking advice from them as to whether she could bring a medical negligence claim against the North West Regional Hospital.
On 16 December 1999 the plaintiff's solicitors wrote to the plaintiff providing advice to her, seeking her instructions to investigate the treatment she had received, and seeking a contribution from the plaintiff towards the disbursements her solicitors would incur in investigating the matter. In that same letter the plaintiff's solicitors informed the plaintiff that she had three years from the date of her injury at the North West Private Hospital – not the North West Regional Hospital, within which to issue proceedings.
The plaintiff informed her solicitors that she wished to consider the matter and take the opportunity to raise the contribution towards disbursements which her solicitors had requested.
On 26 July 2000 the plaintiff sent a signed fee and retainer agreement to her solicitors together with the requested contribution to the disbursements.
Having investigated the plaintiff's claim, on 14 August 2001 the plaintiff's solicitors wrote to the plaintiff advising her that in their opinion the plaintiff had a good claim against the North West Private Hospital, and sought her instructions to issue proceedings against it in the Supreme Court of Victoria.
On 21 August the plaintiff gave her solicitors the appropriate instructions.
On 23 August 2001 the plaintiff's solicitors filed a writ in the Court incorrectly naming as defendant Healthscope Limited (trading as North West Private Hospital) by which the plaintiff seeks damages in respect of the cardiac arrest she suffered on 30 September 1998.
On or about 20 September 2001 the three year limitation period expired. I say on or about, because it may well be debatable as to whether that occurred on 20 September or some days later.
At all events on 24 October 2001 Healthscope Limited filed its defence. By its defence Healthscope denied all allegations made against it by the plaintiff including the fact that it conducted a hospital in Burnie, Tasmania known as the North West Private Hospital and the fact that the plaintiff was admitted to such a hospital between 25 and 31 August 1998.
It was upon receipt of Healthscope's defence that the plaintiff's solicitors realised their mistake in confusing the North West Private Hospital with the North West Regional Hospital.
On 1 November 2001 the plaintiff's solicitors made an ex parte application to a Master of the Court for leave to substitute the State of Tasmania for Healthscope Limited (trading as North West Private Hospital) as the defendant to the proceeding. The Master acceded to the application.
On 12 November 2001 the amended writ and statement of claim were received by the new defendant. On 7 February it delivered its defence to the plaintiff's solicitors.
By paragraph 10 of its defence the State of Tasmania pleads:
"10.If the plaintiff has, or had, a cause of action as alleged (which is denied) it is barred by the operation of Section 5(1) of the Limitation Act 1974 (Tas), in that this action was brought after the expiration of three years from the date on which the said cause of action accrued."
The sub-sections of s.5 of the Limitations Act relevant for present purposes are sub-sections (3) and (5) which read:
"(3) Notwithstanding anything in the foregoing provisions of this section, upon application being made by the person claiming the damages referred to therein a judge, after hearing such of the persons likely to be affected by that application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of the action for such period as he thinks necessary, but so that the period within which the action may be brought does not exceed a period of 6 years from the date on which the cause of action accrued.
…
(5) For the purposes of this section personal injuries include any disease and any impairment of a person's physical or mental condition."
During the course of his submissions counsel for the State of Tasmania did not contend that there was any prejudice to the State of Tasmania by reason of the plaintiff's failure to institute the proceeding against it within the three year period.
In my opinion that was an appropriate concession in the circumstances. It is difficult to see how any prejudice could have been caused to the defendant by reason of the fact that it was joined some five weeks outside the three year period.
What counsel for the defendant did remind the Court of, however, is the oft quoted passage from p.551 of the judgment of McHugh, J. in Brisbane South Regional Health Authority v. Taylor[1].
[1](1996) 186 CLR 551
Whilst being mindful of the matters adverted to by his Honour in that case, nevertheless in the exercise of my discretion I consider it is appropriate to accede to the plaintiff's application.
In my opinion throughout this matter the plaintiff and her solicitors acted promptly and responsibly.
Not surprisingly, the plaintiff has sworn in her affidavit of 8 March 2002 that she instructed and expected (her solicitor) to take any and every step to protect her interest in seeking damages for the injuries and complications including the cardiac arrest, and assumed that he had correctly identified the defendant and that there was a good legal basis for bringing her claim.
The sole cause of the plaintiff's predicament in this case was the unfortunate error made by her solicitor in confusing the North West Private Hospital with the North West Regional Hospital.
On the face of it the plaintiff has a sound claim against the State of Tasmania. In my opinion to refuse her application would be highly prejudicial to her and in the circumstances of this case would be contrary to the interests of justice.
I extend the time within which the plaintiff may institute a proceeding against the State of Tasmania to 7 November 2001 that being the date upon which the amended writ and amended statement of claim were filed in the Court.
I order that the plaintiff pay the defendant's costs of the application including any reserved costs.
---
1
0