Szogi v Woodruff

[1998] QCA 189

[1998] QCA 189

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
CHESTERMAN J

Appeal No 10499 of 1997

ALEXANDER GEORGE SZOGI
             (Plaintiff)  Appellant

and

PETER W H WOODRUFF  
             (Defendant)  Respondent

BRISBANE

..DATE 12/06/98

JUDGMENT

THE CHIEF JUSTICE:  The appellant complains of the results of surgery conducted on him by the respondent on 9 December 1992.  As I see the matter, he wants to complain essentially of the respondent's alleged failure to inform him of the possible adverse consequences of the surgery undertaken.

The appellant issued a writ on 7 December 1995 but failed to serve it, so that it became stale on 7 December 1996.  Between July 1996 and August 1997 the appellant's solicitors had unsuccessfully sought to contact him for further instructions.  When eventually the appellant sought to renew the writ under order 9 rule 1, a Judge in Chambers refused leave.  The Judge noted that the respondent was not informed of any claim until 9 October 1997 although, as Mr King-Scott who appears for the appellant today points out, he may have been aware of the possibility.

The respondent points to prejudice, as the Judge put it in his reasons:

"Dr Woodruff deposes that he retained his clinical notes and theree is a copy of them annexed to his affidavit.  It is in the usual cryptic form of such notes.  Dr Woodruff says that the notes are not a complete record of the consultation, that he does not have an independent recollection of it and in particular he has no note or independent recollection of the discussion, if any, with the plaintiff in respect of the risks of the procedure other than that some risk of developing Horner's syndrome.  He then goes on to depose as to what his usual practice was in respect of these matters."

The Judge then referred to the decision of the High Court in Brisbane South Regional Health Authority and Taylor (1996) 186 Commonwealth Law Reports 541 and concluded that the appellant had not shown cause, so refused the application.

The appellant has asserted before us that the discretion  miscarried and thereby undertook the onus discussed in cases such as House v. The King.  I wish to refer to three particular points of criticism raised by Mr King-Scott with relation to His Honour's approach.

First, he criticised the statement which I read out a moment ago.  The learned Judge one notes said that the respondent said that he had no independent recollection of the consultation.  In fact what the respondent said in his affidavit was in these terms:

"While I do retain my clinical notes and have some independent recollection of the consultation which I had with the plaintiff on 21 September 1992 prior to the operation which I carried out on 9 December 1992 those notes are not a complete record of the consultation nor do I have an independent recollection of all aspects of the consultation.  In particular I have no note or independent recollection of the particular risks or complications of the procedure which I discussed with the plaintiff other than the risk of developing Horner's syndrome although it is my usual practice to discuss other risks or complications of the procedure."

Reading what His Honour said in his reasons for judgment and noting that the passage I earlier extracted follows a paragraph reading:

"It seems that the plaintiff's complaint includes and perhaps is essentially about whether he received appropriate advices to the risks involved in the operation at the initial consultation."

and noting the specific reference to the doctor's lack of independent recollection of the discussion with the plaintiff about the risks, I consider the criticism levelled at the way he expressed the matter not to be tenable or sustainable.  It does seem that the point which His Honour was making is that with respect to the apparent focus of the matter, that is the advice given prior to the surgery, the doctor was prejudiced now in that he had as he claimed no independent recollection.

The second criticism was that His Honour took this course in a case where the delay was much less of an order than has characterised most other cases where leave was refused.  If this is meant to suggest that there is some arguable cut-off point then obviously it is not an appropriate way to approach the matter.  Of course where delay has been minimal ordinarily one would be immediately sympathetic to an application for renewal but this is not a case that would bear that description.

Third, it was suggested that His Honour may have failed to appreciate the adverse consequence to the appellant of refusing the application.  Certainly that feature is not mentioned in the reasons for Judgment but it must have been plain to His Honour that to refuse the application would mean the appellant's loss of this cause of action against the respondent.

Looking at the matter more broadly for the purposes of this appeal one notes that these exercises are quintessentially discretionary.  No doubt in this case the delay was not as prolonged as in some cases.  The prejudice may have been largely inferred or, as it was styled, presumed, rather than established by direct evidence, although that may understate the position somewhat from the respondent's point of view. 

Obviously a consequence of this judgment is that the appellant will have lost his rights against the respondent but none of the circumstances to my mind compelled the conclusion that the Judge should have granted the relief sought.  The discretion in short is broad and unfettered and in my view the course taken by the Judge was open to him and is not shown to have been infected with any defect which should warrant this Court's reviewing it.

In my opinion the appellant has not discharged the onus he bears in challenging a judgment of this character. I would dismiss the appeal with costs.

McPHERSON J:  I agree.

CHESTERMAN J:  I agree.

THE CHIEF JUSTICE:  That is the order of the Court. 

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