Thompson v Rosen

[2020] NSWSC 356

Supreme Court

New South Wales

Medium Neutral Citation:

Thompson v Rosen [2020] NSWSC 356

Hearing dates:

26 February 2020

Date of orders:

06 April 2020

Decision date:

06 April 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court Orders that:

 

(1) The defendants’ notice of motion filed 30 July 2019 is dismissed.

(2) The defendants are to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – Application for dismissal – Whether no reasonable cause of action because proceedings are statute barred – Whether proceedings are an abuse of process – Where the plaintiff has already been compensated for damages in a class action – Application dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5, 50
Director of Public Prosecutions Act 1986 (NSW), s 15
Limitation Act 1969 (NSW), ss 27, 50
Limitation of Actions Act 1958 (Vic), s 27
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:

Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454
Chapel Road Pty Ltd v Australian Securities Investments Commission (No 10) [2014] NSWSC 346
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125,
Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905
Jones v Dunkel (1959) 101 CLR 298
Murgolo V AAI Ltd t/as AAMI [2019] NSWCA 295
Pomare v Whyte [2019] NSWCA 317
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
State of New South Wales v Gillett [2012] NSWCA 83

Category:

Procedural and other rulings

Parties:

Gai Thompson (Plaintiff)
Dr David Rosen (First Defendant)
Associate Professor Alan Lam (Second Defendant)

Representation:

Counsel:
R Sergi (Plaintiff)
E Romaniuk SC + S Roulstone (Defendants)

  Solicitors:
Martin Street Lawyers (Plaintiff)
Avant Law (Defendants)

File Number(s):

2018/335578

Publication restriction:

Nil

Judgment

1. HER HONOUR: By notice of motion filed 30 July 2019, the defendants seek, firstly, that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) because they are an abuse of the process of the Court; secondly, and in the alternative, that they be dismissed pursuant to UCPR 13.4 because no reasonable cause of action is disclosed as the proceedings are statute barred by the Limitation Act 1969 (NSW); and thirdly, that the proceedings be struck out pursuant to UCPR 14.28. The plaintiff opposes the orders sought.

2. The plaintiff is Gai Thompson. The first defendant is Dr David Rosen. The second defendant is Associate Professor Alan Lam. The defendants are gynaecologists. The plaintiff did not rely on any affidavit evidence. The defendants relied upon three affidavits of their solicitor, Michael André Swan, dated 3 July 2019, 30 July 2019 and 12 December 2019. The parties relied on a court book.

The pleading framework

3. By statement of claim filed 1 November 2018, the plaintiff alleges that the first defendant, Dr David Rosen, was negligent in performing a hysterectomy, pelvic floor repair, paravaginal repair and cystoscopy on 28 August 2007.

4. The plaintiff alleges that the second defendant, Associate Professor Lam, was negligent in managing a vaginal prolapse by inserting anterior Prolift mesh and posterior Surgisis mesh on 25 February 2008.

The defences

5. The defences of both defendants are in similar terms.

Defence – Dr Rosen

6. By his defence filed 22 June 2019, Dr Rosen denies that he was negligent. Further, in accordance with s 5D(1) of the Civil Liability Act 2002 (NSW), Dr Rosen denies both that any of his conduct caused or materially contributed to any harm to the plaintiff, and that the scope of his liability extends to the alleged harm.

Civil Liability Act

7. Further and in the alternative, Dr Rosen contends that in answer to the whole of the statement of claim, he acted in a manner that at all material times was widely accepted in Australia by peer professional opinion as competent professional practice in accordance with s 5O of the Civil Liability Act.

Limitation Act

8. Further and in the alternative, in answer to the whole of the statement of claim, Dr Rosen contends that in accordance with s 50C the Limitation Act, the subject proceedings are not maintainable against him. The particulars are as follows:

1. The proceedings were commenced more than 3 years running from and including the date on which the plaintiff knew, or ought to have known of:

1. the fact that the alleged injury had occurred;

2. the fact the injury was allegedly caused by Dr Rosen; and

3. the fact that the injury was allegedly sufficiently serious to justify commencing the proceedings.

Abuse of process

9. Further and in the alternative, in answer to the whole of the statement of claim, Dr Rosen contends that the subject proceedings are an abuse of process. The particulars are as follows:

1. by the statement of claim, the plaintiff alleges that she has suffered injury, loss and damage resulting from the use of Prolift and Surgisis mesh;

2. in 2012, class action proceedings were commenced in the Federal Court of Australia against the manufacturers of the surgical mesh (“the class action”); and

3. the plaintiff is a registered member of the class in the class action.

Set off

10. Further, Dr Rosen contends that any damages claimable in these proceedings ought to be set off against any damages obtained or obtainable by the plaintiff in the class action proceedings.

Defence – Associate Professor Lam

11. By his defence filed 22 June 2019, Associate Professor Lam, like Dr Rosen, denies that he was negligent in accordance with ss 5D(1) and 5O of the Civil Liability Act. Further and in the alternative, in answer to the whole of the statement of claim, Associate Professor Lam pleads s 50C of the Limitation Act, that the proceedings are an abuse of process and that any damages claimable should be set off in the same terms pleaded by Dr Rosen.

12. The plaintiff has not filed any replies to the defences.

Strike out and dismissal

13. Rule 13.4(1) of the UCPR provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances: where the proceedings are frivolous or vexatious, where no reasonable cause of action is disclosed or where the proceedings are an abuse of the process of the Court.

14. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ stated at 129:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.’”

15. The defendants also relied upon UCPR 14.28. It reads:

“14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading-

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

16. Counsel for the defendants referred to Murgolo V AAI Ltd t/as AAMI [2019] NSWCA 295 (“Murgolo”), where Basten JA (Macfarlan and Leeming JJA agreeing) stated that an application for summary dismissal of proceedings should only be upheld if the question is clear and there is no real question of fact or law to be determined ([62 and [63]). His Honour continued that limitation questions should generally not be decided in interlocutory proceedings except in the clearest of cases.

17. I shall deal firstly with whether the plaintiff’s pleading is an abuse of process or discloses no reasonable cause of action and then whether the plaintiff’s claim is statute barred.

Abuse of process

18. Counsel for the defendants submitted that the plaintiff’s claims against each of the defendants are an abuse of process because they are effectively a duplication of the decision in the class action brought by the plaintiff as a class member in the Federal Court in Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905 (“Gill”).

The class action decision

19. The plaintiff is a member of a class action proceedings filed in the Federal Court of Australia on 15 October 2012 against Johnson & Johnson, manufacturers of the certain vaginal surgical mesh products. Shine Lawyers are the solicitors for the plaintiffs in the class action.

20. Johnson & Johnson are the manufacturers of the Prolift surgical mesh that Associate Professor Lam used in the procedure he performed on the plaintiff on 25 February 2008. Ethicon is a subsidiary of Johnson & Johnson.

21. On 21 November 2019, the Federal Court handed down its decision in the Gill. Consideration of the nature of the class action forms part of the defendants’ present application.

22. The relevant parts of the Federal Court decision are summarised as follows.

23. In Gill, the applicant brought seven claims, four under Commonwealth consumer protection laws and three at common law in negligence. Of the numerous issues raised, some were common to the applicant and other members of the represented group, and others were unique to individual applicants. The trial began at the beginning of July 2017 and did not conclude until the end of February 2018.

24. In its decision, the Court held that the use of the meshes, and the techniques required to implant them, exposed patients to risks of significant and serious injury.

25. In the case of Prolift, the Court found that Ethicon had started studies on a prototype, but pressed ahead with the launch of the mesh for medical use without waiting until the studies had been completed. Ethicon failed to inform doctors or patients that available information on the product was limited. It also failed to inform them of all risks that could eventuate, how they could be effectively managed and how they could be remedied.

26. The Court further found that Ethicon were not oblivious to the importance of patient safety. It knew that doctors and patients wanted to be assured that their products were both safe and effective. Even after Ethicon introduced changes to its devices which the intention of reducing the risk of injury, it continued to promote and sell the older devices, and remained publicly coy about what it knew and did not know about all of them.

27. Few of the pleaded complications or the inadequacies of Ethicon’s clinical evaluations were disclosed in the instructions for use issued with the devices or in any of the promotional material that was tendered in evidence. Ethicon made substantial amendments to the instructions for use in 2015, after intervention by the Canadian regulator, Health Canada, and later by the Therapeutic Goods Administration. However, the Court found that even the amended versions still provided inadequate and, in some respects, misleading accounts of the effects of implantation and the risks of the pleaded complications. The promotional material, which included product brochures produced by both Ethicon and Johnson & Johnson, minimised the harm the devices could cause while also exaggerating their benefits.

28. For example, a 2005 Prolift brochure represented that Prolene Soft was “specially designed for placement through the vagina to support [prolapsed] pelvic organs”, when in fact it was the same mesh designed to reinforce the abdominal wall. In an internal email, the Director of Worldwide Risk Management for Ethicon said of this representation:

“This mesh was not ‘specifically designed’ for Prolift application, we pulled a mesh out of our existing bag of tricks. This statement is unsupportable from (sic) a design history standpoint.”

29. The Court found that risks were minimised or not mentioned at all. There were some differences between the various devices, the techniques used to implant them and the extent of the harm they could cause. Despite this, all the devices carried risks of complications the respondents admitted were clinically significant, against which no adequate warnings were given, and about which doctors and patients alike could have been misled.

30. The applicants made out their case against Ethicon as follows.

31. The evidence established that the pre-market evaluation of the devices undertaken by Ethicon was deficient in numerous respects, including the following.

32. First, Ethicon conducted little to no adequate clinical trials on the devices before taking them to market. Meshes including Prolift and others were developed on the basis of studies conducted by surgeons on select groups of patients. Although the Ethicon meshes were intended for permanent implantation and indicated for use in a wide range of patients, none of the Ethicon devices was subjected to a comparative (let alone randomised controlled) trial before they were made available for sale to assess its relative safety and efficacy in comparison to other forms of surgical repair. Nor did Ethicon conduct a trial in a large group representative of all the women for whom the device was indicated, and for a sufficient period of time, to enable reliable conclusions to be drawn about its long-term safety or efficacy. The applicants noted that email correspondence revealed that even Johnson & Johnson’s medical director had expressed concern that “TVT Secur” mesh had been launched without enough clinical data.

33. Second, it was the applicants’ case that critical documents, which manufacturers are required to create and maintain, were missing from Ethicon’s design history and technical files.

34. Third, no overarching, cohesive risk management system was in place. Risk management assessments were largely treated as a box-ticking exercise. Some harms and hazards associated with the devices, of which Ethicon was well aware, were not assessed or mitigated. Where harms and hazards were assessed, they were rarely escalated for further review or action and were not remediated.

35. Fourth, the clinical evaluations of all the devices which were relied upon to support CE marking did not satisfy requirements.

36. So far as the duty of care of Johnson & Johnson (the supplier) was concerned, Katzman J was not persuaded as a matter of law or fact that its duty of care was as extensive as the manufacturer. Johnson & Johnson’s duty of care was to take reasonable steps to ensure that the information it conveyed about the devices was accurate, not misleading, and sufficient to alert both medical practitioners and prospective patients about the true risks associated with the use of the devices.

The defendants’ submissions

37. The defendants submitted that the present proceedings are effectively a duplication of proceedings brought by the plaintiff in the Federal Court. The effect of the decision in Gill was that the plaintiff was given a remedy in relation to the same damage.

38. The defendants submitted that the plaintiff should not be permitted to litigate in the Supreme Court of New South Wales material issues which have been, or should have been, determined in the Federal Court of Australia: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

39. The decision in Gill has determined the issues of liability, loss and damage for the plaintiff’s injury. The defendants submitted that under the circumstances, the plaintiff’s claim in the present proceedings that the defendants are liable for the same injury, loss and damage is an abuse of process.

40. In defendants submitted that the Court in Gill determined the issue of the relationship between the damage allegedly suffered by the plaintiff and the use of the surgical mesh. The defendants argued that the issues of whether the plaintiff’s damage resulted from the conduct of the defendants, and not that of the respondent in Gill, should have been determined in the same court at the same time. To determine these issues separately may result in inconsistent judgments in relation to both liability and damage.

41. Firstly, in relation to liability, many of the allegations of negligence in the plaintiff’s claim relate to advice which the defendants gave or failed to give in relation to the surgical procedures in question. The issue of advice given or not given by the defendants is closely connected to the defendants’ understanding of the risks associated with the surgical mesh. The issue of the state of knowledge of surgeons such as the defendants was the subject of relevant findings in Gill. The defendants submitted that as such, any findings adverse to the defendants in relation to breach will result in consideration of the issue of causation.

42. If the plaintiff is permitted to maintain her claim against the defendants, the defendants may be prevented from joining the respondents in Gill as a consequence of the determination of those issues in the class action. The defendants submitted that that risk would have been avoided if the claims had been heard together.

43. Secondly, in relation to damages, the defendants submitted that the plaintiff’s claim in the class action was for precisely the same damage as her claim for damages in the present proceedings. It is probable that an assessment of the quantum of the damage in one court will not be the same in another.

44. Finally, the defendants submitted that at the very least, the plaintiff should be estopped from re-litigating aspects of alleged negligence that go to matters that are the subject of express findings by the Court in Gill.

The plaintiff’s submissions

45. The plaintiff submitted that Associate Professor Lam inserted both Prolift and Surgisis. Only one of those products, Prolift, was a mesh product covered by the mesh class action. Despite this, the defendants argue that the plaintiff’s claim in these proceedings is for the “very same damage” as in Gill. That is not correct, as Dr Rosen’s negligence relates to surgical procedures performed, and Associate Professor Lam’s negligence relates to treatment, which included the two types of mesh product. The plaintiff submitted that whether Prolift gave rise to all the “very same damage” as in Gill is a triable issue, and presently the defendants have served no evidence that would sustain this conclusion.

46. The plaintiff further submitted that there is no risk of “inconsistency”. The plaintiff’s claim is against medical practitioners, not mesh product manufacturers. The mesh product manufacturer of Prolift may be a wrongdoer that has contributed to the injury, loss and damage, or it may be a concurrent wrongdoer to the injury, loss and damage. Either way, the plaintiff submitted that she is not required to join the product manufacturer to these proceedings.

47. There is nothing about the plaintiff’s participation in the class action that indicates these proceedings should be dismissed. The plaintiff submitted that the impact of any damages from the mesh class action on these proceedings should be determined at a trial. If damages are awarded for the negligence of both Dr Rosen and Associate Professor Lam, these will differ from those awarded in the mesh product case. The issue of damages is a triable one.

48. Finally, the plaintiff submitted that the law precludes “double compensation”. As such, arguably the issue of set off does not arise, but again that is a triable issue.

Consideration

49. Dr Rosen performed a hysterectomy and bladder repair on the plaintiff. He had no involvement with the Prolift mesh. Therefore, no issue estoppel or res judicata exists against him. Associate Professor Lam did insert Prolift mesh into the plaintiff’s anterior vaginal wall. It is the plaintiff’s case that this treatment was offered without a discussion of alternative native tissue repair, or of the significant complication of mesh erosion once inserted. Gill concerned the liability of the manufacturer and supplier of Prolift, but not the allegations of negligence that the plaintiff makes against the medical practitioners.

49. I accept that at trial, if the plaintiff is successful, there may be some overlap with the compensation awarded to her in the class action and these proceedings. If there is, there will need to be some deduction of damages made so that the plaintiff does not “double dip”.

50. Subject to the Limitation Act issue, it is my view that the plaintiff’s claim is not the subject of issue estoppel or res judicata. There is no abuse of process. Later in this judgment, I refer to the expert report of Professor Mike O’Connor dated 6 September 2018, which supports the plaintiff’s case. There is a reasonable cause of action. Therefore, the plaintiff’s claim should not be dismissed on the basis that it is an abuse of process or that it discloses no reasonable cause of action. Nor should the statement of claim be struck out for the same reasons.

Is the plaintiff’s claim statute barred?

52. As stated, the defendants acknowledge that an application for summary dismissal of proceedings should only be upheld if the question is clear and there is no real question of fact or law to be determined. Limitation questions should be determined in interlocutory proceedings only in the clearest of cases: see Murgolo at [62] per Basten JA.

53. In this interlocutory application, it is common ground that based on the relevant “discoverability” provisions of the Limitation Act, where the defendants are the moving parties, the defendants bear the legal onus of proof: see State of New South Wales v Gillett [2012] NSWCA 83 (“Gillett”), [26] (Beazley JA); Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 (“Baker-Morrisson), [14] (Basten JA).

54. The relevant provisions of the Limitation Act are ss 50C(1) and 50D, which relevantly read:

“50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note. The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.”

55. These sections were introduced into Pt 2, Div 6 of the Limitation Act in 2002 as part of legislative amendments to the law governing claims for damages for personal injury, the bulk of which are to be found in the Civil Liability Act.

56. This application depends upon identifying the date on which the cause of action against the insured company was “discoverable” by the plaintiff. The parties agree that the relevant date was prior to 1 November 2015, which was the date 3 years prior to the filing of the statement of claim.

57. While the defendants bear the onus of establishing that the relevant provisions of the Limitation Act are satisfied, the defendants submitted that inferences may be drawn which make the determination of this issue less onerous. I accept that there is no evidence from the plaintiff, or her solicitor, which might assist the Court in understanding the reasons for her delay in commencing these proceedings. However, some of the contemporaneous records in evidence are directed to the reasons for the plaintiff’s delay.

Should a Jones v Dunkel inference be drawn?

58. The defendant submitted that the plaintiff has not filed or served any affidavit or other evidence. The defendants submitted that evidence adduced by the defendants which might have been contradicted by the plaintiff can be more readily accepted if the plaintiff fails to give evidence: see Jones v Dunkel (1959) 101 CLR 298 at 308; also Pomare v Whyte [2019] NSWCA 317 (“Pomare”) at [29] per Basten JA.

59. The plaintiff stated that she has put little evidence before the Court because the defendants’ application rests on their proving what is necessary for the relief that they claim. The plaintiff submitted that in this application, there is no work of substance for a inference, or other principles related to the drawing of inferences. She submitted that in this application, the defendants’ evidence does not meet the required burden of proof, and no inference will make up for the absence of probative evidence.

60. In Chapel Road Pty Ltd v Australian Securities Investments Commission (No 10) [2014] NSWSC 346 (“Chapel Road”), Schmidt J outlined the relevant principles concerning Jones v Dunkel inferences at [118]-[129]. These include that the rule does not permit the failure to call a witness to be used to fill gaps or deficiencies in evidence ([126]), and that before a Jones v Dunkel inference can be drawn, there must be an inference against that party available to be drawn from the evidence admitted ([128]).

61. In Chapel Road, the relevant officers of ASIC were not called. Schmidt J stated that given the contemporaneous documents which were available, no adverse inferences were available to be drawn. ([129]).

62. Schmidt J stated that despite the fact that there was no affidavit or other evidence, a number of contemporaneous documents had been provided to the court. Those documents facilitate the drawing of a clear understanding of the chronology of facts and events that pertain to discoverability.

63. These current proceedings are similar to Chapel Road, as the plaintiff has not served affidavits or other evidence. However, a number of contemporaneous documents which have been provided to the court provide a clear understanding of the points of the plaintiff’s knowledge at various periods of time. In these circumstances, it is not appropriate to draw a Jones v Dunkel inference. The inferences and the understanding that can be drawn from the available documents demonstrate that the plaintiff did not file or serve any affidavit or other evidence because in light of the documents provided, there was no need to do so.

64. The parties referred to Baker-Morrison, Gillett and Pomare.

Baker-Morrison

65. The Court of Appeal in Baker-Morrison was concerned with the discoverability provisions contained in ss 50C and 50D of the Limitation Act. Basten JA (lpp and Macfarlan JJA agreeing) determined that the concept of “fault” was to be ascertained by reference to legal concepts. His Honour stated at [25], [26] and [28]:

“[25] A cause of action is ‘discoverable’ for the purposes of s 50C if the relevant person has either actual knowledge or what is sometimes described as ‘constructive’ knowledge, being what he or she ‘ought to know’ of certain facts: s 50D(1), set out at [7] above. Both limbs require giving content to:

(i) the concept of knowledge, and

(ii) each of the identified ‘facts’.

[26] These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a nonprofessional, the nature of the person’s knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts. In the present case, no issue arose with respect to para (a)…

…

[28] In para (b), the word ‘fault’ is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as ‘discoverable’ for the purpose of s 50C is ‘the cause of action’. The ‘fact’ contemplated by para (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.”

66. His Honour continued at [39] and [41]:

“[39] The linguistic difference between s 60I(1) and s 50D(1) cannot be disregarded. The test in s 60I is broader in two respects, and therefore easier for a defendant to establish. First, the relationship between injury and act or omission is said in s 60I to be one of ‘connection’, whereas in s 50D it is one of causation. Secondly, the phrase ‘act or omission’ is replaced by ‘fault’. On the other hand, in a practical sense, the latter distinction may be more apparent than real. Once it is accepted that the act or omission of which the person is to be aware under s 60I is the existence of an alternative system or precaution, apparently being one reasonably available, the point of distinction is diminished. As explained in Drayton, there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action, nor with the underlying approach in Dedousis and Drayton.

…

[41] Although a legal evaluative judgment appears to be required by para (b), that element is even more explicit in para (c). Thus the injury must not only be understood to be serious, but ‘sufficiently serious to justify’ a course of action. Further, that course is ‘the bringing of an action on the cause of action’, an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being ‘of a decisive character’ for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one ‘knowing those facts and having taken the appropriate advice on those facts’ would hold the identified opinion.”

Gillett

67. In Gillett, the appellant challenged the correctness of the decision in Baker-Morrison and submitted that the word “fault” should be given its ordinary meaning in accordance with the principle of the statute. In other words, this Court should apply a meaning of “fault” for which it is not necessary for the plaintiff to demonstrate moral blameworthiness.

68. The Court of Appeal in Gillett found that the construction given to “fault” in Baker-Morrison was correct. Beazley P, with whom all other judges of the Court agreed, endorsed the reasoning of Basten JA in Baker-Morrison at [39] that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. Beazley P stated at [94]-[97]:

“[94] In my opinion, Basten JA was correct when he stated, at [39] 464, that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. As his Honour pointed out, s 50D(1)(b) involves a relationship of causation between “fault” and injury. Section 60I involves a connection between an act or omission and injury. The respondent's submission, noting the requirement in s 50D(1)(b) that the fault be that of the defendant, who may not be the actual wrongdoer, supports this construction.

[95] There will be many cases where the discoverability of a cause of action will have little to do with moral blameworthiness in the ordinary meaning of that word. A case where a defendant is liable pursuant to a non-delegable duty of care is one example where this could be said to be the case. A defendant only liable pursuant to statute, such as the Nominal Defendant, is another. The State, liable under the Crown Proceedings Act 1988, as is the case here, is another example. Yet another is a case of malicious prosecution, where the identity of the prosecutor is pivotal to the determination of the elements of malice and reasonable and probable cause: see A v The State of New SouthWales [2007] HCA 10; 230 CLR 500. The factual circumstances in Bostik provide a further example where a plaintiff may not know who the employer is and therefore whether injury was the fault of a particular defendant. This is not so unusual. Many cases come before the courts where a plaintiff is unaware of the identity of the actual employer.

[96] It is useful at this point to return to the statement of Basten JA in Baker-Morrison, at [40], where his Honour referred to the failure of the State to demonstrate:

‘…that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe.’

[97] A question arose during the course of the argument whether, in making this observation, his Honour's construction of ‘fault’ referred to the facts that demonstrate that there had been a breach of the relevant legal standard. In this regard, the ‘relevant legal standard’ may vary, depending on whether the claim was brought in negligence, breach of contract or breach of statutory duty. The respondent submitted that this formulation reflected the construction he was propounding, namely that, for the purposes of ‘fault’ in s 50D(1)(b), a defendant had to establish that the plaintiff knew the matter was legally actionable. What that involved in a particular case would depend upon the relevant facts and circumstances. I agree with Senior Counsel’s response.”

69. In Gillett, Campbell JA stated at [131]:

“[131] In Baker-MorrisonBasten JA regarded satisfaction of s 50D(1)(c) as dependent upon ‘the exercise of both legal and medical expertise’ ([41]) and that ‘the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made’ ([44]). For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being ‘fault’, actionability is likewise one of the ‘key factors necessary to establish liability’ that must be known before s 50D(1)(b) is satisfied.”

70. This passage was approved by McColl, Young and Whealy JJA.

Pomare

71. In Pomare, the Court of Appeal (per Basten, Macfarlan JJA agreeing; Emmett AJA dissenting) held at [78] and [79]:

“[78] A cause of action will be ‘discoverable’ within the meaning of s 50C where the plaintiff knows or ought to know all of the factors necessary to give rise to liability on the part of the prospective defendant. That is to say, the person knows or ought to know that there is a causal relationship between the injury and the defendant’s “fault”. The requirement that the fault be that of the defendant, who may not be the actual wrongdoer, supports that construction.

[79] There is no need for the person on question to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. The use of the word ‘fault’ signifies that, while it is not necessary for the relevant person to be aware of the legal characterisation of the entitlement to recover damages in terms of negligence, nuisance, breach of duty or otherwise, there must be a perception that the relevant conduct of the prospective defendant gives rise to legal responsibility that is actionable, such that the injured person is entitled to be compensated for the injury caused by that ‘fault’. That is to say, since actionability is one of the factors necessary to establish liability, actionability must be known before s 50D(1)(b) is satisfied.”

Discoverability

The defendants’ submissions

72. The defendants submitted that the Court should be satisfied that the evidence indicates that the plaintiff knew of the two following relevant discoverable facts prior to 1 November 2015:

1. that the injury which is the subject of the proceedings had occurred (s 50D(1)(a)); and

2. that the injury was sufficiently serious to justify the bringing of an action on the cause of action (s 50D(1)(c)).

73. The defendants submitted that the nature and extent of the alleged injuries are such that the plaintiff knew, or ought to have known, that (subject to knowledge of fault) the injury was sufficiently serious to justify bringing the action.

74. Consideration of whether the plaintiff knew that the injury was caused by the fault of the defendants requires further analysis (s 50D(1)(b)).

The plaintiff’s submissions

75. The plaintiff submitted that she understood that both Dr Rosen and Associate Professor Lam were at fault when she read the report of Professor Mike O’Connor on the 6 September 2018. If this contention is correct, then the plaintiff has filed her statement of claim within time.

76. The plaintiff tendered the expert report of Professor O’Connor dated 6 September 2018 (Ex B). In that report, Professor O’Connor was asked questions and provided his answers as follows.

“1.1   whether it was reasonable to recommend a hysterectomy as treatment for Ms Thompson’s presenting complaints in respect of long-term heavy periods?

Answer: No.

a.   The plaintiff had been suffering heavy painful periods for a protracted period of time.

b.   She was not intending to have a hysterectomy.

c.   No diagnosis had been made to account for those symptoms.

d.   The possible diagnoses would have included endometriosis, adenomyosis, and fibroids.

e.   No attempt was made to ascertain the cause pre-operatively even to the extent of requesting a pelvic ultrasound.

f.   As it transpired the plaintiff did have endometriosis which could have been treated without resort to hysterectomy by excision (done by Rosen), hormonal treatment with oral contraception, medroxprogestrone acetate or GcRH analogues such Zoldex® or Synarel®.

g.   The alternative treatments with a Mirena® IUCD or an endometrial ablation were not offered.

…

1.7   whether the colposuspension was reasonably performed from a surgical viewpoint:

Answer: No.

a)   It would appear that the Burch procedure was far too tight to allow normal post-operative voiding.

b)   This led to the need for positional voiding and the poor residual urine volumes

c)   Urinary retention was more probably than not the cause of the Plaintiff’s urinary tract infections

d)   Voiding difficulties after a Burch Colposuspension include:

a.   Prolonged voiding difficulties (12.5%).

b.   Overactive bladder: 14-18%

e)   In addition there are other complications such as:

a.   Vault prolapse: 5%

b.   Cystocoele: 3%

c.   Enterocoele: 8%

d.   Genito-urinary prolapse: 12-14%

e.   Dyspareunia: 4%

f.   Chronic groin pain: Post-colposuspension syndrome, which is characterized by pain in 1 or both groins at the site of the suspension.

1.11   How should Ms Thompson have been reasonably managed?

Answer:

i.   The laparoscopic Burch colposuspension sutures should have been released as the primary course of action. Suprapubic and vaginal ‘take-down’ procedures involving urethrolysis, with or without additional resuspension procedures, have been described by various authors as an alternative to CISC [clean intermittent self-catheterisation] for patients who were considered obstructed after surgery for incontinence.

ii.   The right lateral vaginal wall suture near the vault should have been released to ease the Plaintiff’s dyspareunia/apareunia.

2   Opinion Sought: Treatment Provided by Associate Professor Alan Lam

We seek your opinion in respect of the following matters pertaining to claims against Associate Professor Lam:

2.1   whether the procedures performed by Professor Lam were reasonable for Ms Thompson’s then condition, or whether other conservative measure should have been pursued:

Answer: No

i.   The minor degree of cystocoele & rectocoele did not require primary surgery

ii.   Conservative treatment with pelvic floor physiotherapy should have been offered first.

iii.   The insertion of Proflift® mesh into the anterior vaginal wall was offered without a discussion of the alternative of native tissue repair.

iv.   The discussion of Proflit® did not indicate it was a mesh which could have significant complications such as mesh erosion.”

77. The concept of “fault” within s 50D(1)(b) is not the same as that used in the broad generic meaning of the word: see Baker-Morrison at [28]. Rather, it is an evaluative concept, which by reason of its reference to “fault” in respect of the “cause of action”, includes professional advice and opinion. In a case such as the present, this includes input from an appropriately qualified expert discuss matters relevant to breach of duty of care in respect of the medical negligence claim, and input from legal advisors on those same matters. This evaluative process is discussed in Baker-Morrison at [26]-[44] (Basten JA), and this approach was endorsed in Gillett at [131] (Campbell JA).

78. Alleging that a party is at “fault”, in the relevant sense, is different to complaining about the outcome. It is also different speculating in an uninformed way that the alleged wrongdoer was negligent, particularly in an area of legal complexity such as medical negligence where expert opinion is invariably determinative of matters of fault for discoverability purposes.

79. The plaintiff submitted that as the Baker-Morrison and Gillett decisions identify, determining fault is an evaluative process made on the known facts and circumstances. In this case, there is no probative evidence put forward by the defendants upon which the Court should conclude that the plaintiff, objectively assessed, had that knowledge at any identifiable time relevant to the defendants’ present application.

80. The defendants submitted that the plaintiff had a “reasonably held belief” that there was “a connection between her injury and the defendants’ conduct in question”. However, the plaintiff submitted that she had received advice that she had no claim against medical practitioners and that it was extremely difficult to establish negligence. The plaintiff had no informed appreciation that the defendants were at “fault”.

Actionability

81. In Gillett, Campbell JA concluded at [131] that, as a matter of construction, “actionability” was the relevant statutory concept within s 50D. In substance, actionability describes the same evaluative process discussed by Basten JA in Baker-Morrison. At [39], Basten JA stated, “it is the key factors necessary to establish legal liability which must be known”. This knowledge encompasses both actual knowledge and presumed objective knowledge.

82. It is the plaintiff’s case that she was unaware of the fact that the injury was caused by the fault of either of the defendants, and that she had no informed appreciation of the defendants’ fault.

83. The plaintiff submitted that her evidence shows that she did not know, nor ought she to have known, that the injury was caused by the fault of one or other of the defendants. That is, she lacked a reasonably held belief that there was a connection between her injury and the defendants’ conduct in question: see Murgolo at [125] per Leeming JA.

Consideration

84. A cause of action is discoverable by a person on the first date that the person knows or ought to know of each of three facts:

1. that the injury concerned occurred (s 50D(1a));

2. that the injury or death was caused by the fault of the defendant (s 50D(1b)); and

3. in the case of injury, that the injury was sufficiently serious to justify the bringing of an action on the cause of action (s 50D(1c)).

85. The onus lies upon the defendants to establish that the relevant provisions of the Limitation Act are satisfied.

86. I will consider each of the required facts separately in respect of each of the first and second defendants in turn, but in the following order: s 50D(1)(a) and (c), followed by s 50D(1)(b) of the Limitation Act.

Dr David Rosen

Section 50D(1)(a) – the fact that the injury concerned has occurred

87. On 28 August 2007, Dr Rosen performed a hysterectomy and bladder repair on the plaintiff.

88. The plaintiff’s knowledge of the injury occurred at a very early point in time. Almost immediately, she suffered extreme pain, continued blood loss and vaginal discharge, which were symptoms that she clearly recognised to be outside of the realm of normal post-operative complications.

89. On 23 November 2007, the plaintiff sought a second opinion from Associate Professor Lam. On 25 February 2008, Associate Professor Lam performed a second procedure to remedy the outcome of the first. The fact that the plaintiff consented to the second procedure, which was meant to serve as a corrective, evinces her knowledge of injury from the first.

Section 50D(1)(c) – the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action

90. It is evident that the plaintiff’s awareness of the sufficient seriousness of the injury also arose early on.

91. She acknowledges that awareness in a letter dated 19 May 2008 and addressed to Dr Rosen, in which the details the “extreme pain, extreme stress and significant financial loss” she had suffered as a result of the first procedure. This letter also includes demands for “reimbursement of $15,000”, and promises to seek legal advice in the alternative. These are statements that evince the plaintiff’s understanding that she had suffered an injury sufficiently serious to ground legal action.

92. However, while the plaintiff was aware that she suffered a serious injury or injuries, she did not know that she had a cause of action. She therefore did not know that the injury was sufficiently serious to justify the bringing of an action on the cause of action (my emphasis). She only became aware of the cause of action when she read the report of Professor Mike O’Connor on 6 September 2018.

Section 50D(1)(b) – the fact that the injury was caused by the fault of the defendant

93. An understanding of fault in a medical negligence claim requires the input of both a lawyer and a doctor. The plaintiff may have speculated that her injuries were the fault of Dr Rosen as soon as she discovered them. However, it was not until much later that she had an informed appreciation of fault in a medical negligence cause of action context. The use of the world “fault” signifies that, while it is not necessary for the relevant person to be aware of the legal characterisation of the entitlement to recover damages, there must be a perception that the relevant conduct of the prospective defendant gives rise to legal responsibility that is actionable, such that the injured person is entitled to be compensated for the injury caused by that “fault”. That is to say, since actionability is one of the factors necessary to establish liability, actionability must be known before s 50D(1)(b) is satisfied.

94. The plaintiff’s dissatisfaction with Dr Rosen’s advice and treatment prompted her to obtain professional advice and canvass with solicitors. The plaintiff was instructed on several occasions that she had no claim against the medical practitioners. In response to and acceptance of this advice, she joined the class action proceedings against Johnson & Johnson and Ethicon in lieu of the pursuit of a claim in medical negligence.

95. On 14 January 2009, Janelle Sangster, from Watkins Tapsell Lawyers, wrote to the plaintiff with regards to her medical negligence claim. The letter read:

“We refer to your medical negligence claim and wish to advise Dr Cooper has agreed to provide us with a medical report in relation to your claim. Dr Cooper’s fee for preparation of the report is $2,200. He will shortly forward us through a tax invoice for payment.

Please contact our office to advise if you wish to proceed and obtain his report.”

96. On 18 February 2009, a representative from Watkins Tapsell Lawyers again wrote:

“We refer to our letter dated 22 January 2009 and have not heard from you in this regard. We have tried on a number of occasions to contact you by way of telephone but to date have been unsuccessful.

Please contact our office to provide us with instructions in relation to obtaining Dr Cooper’s medical report.”

97. On 12 June 2009, Watkins Tapsell Lawyers wrote to the plaintiff for a third time. The letter read:

“We refer to our letter dated 18 February 2009 and note we have not heard from you in relation to your medical negligence claim.

Please be advised if you still wish to continue with your medical negligence claim please contact us within 14 days, if we have not heard from you within this time we will proceed to close your enquiry.”

98. Importantly, Watkins Tapsell advised:

“As previously advised you have 3 years from your date of injury in which to commence proceedings. If you do not commence proceedings within this time any rights you have may be lost. In accordance with your instructions we confirm your date of injury was 28 August 2007, therefore you have until 28 August 2010 in which to commence proceedings.”

99. On 17 May 2011, the plaintiff again wrote a letter to Dr Rosen requesting compensation in the sum of $50,000, to be used for the on-going medical bills she had “paid and continue[d] to pay”. Avant Insurance responded to this letter on behalf of Dr Rosen, denying any liability on his part. It detailed that the procedures recommended to her were:

“…clinically indicated and appropriate to her symptoms and signs and that this was supported by contemporaneous clinical records and that the plaintiff suffered a recognised complication of which she was warned. It rejected any claim for compensation.”

100. By 17 May 2011, the plaintiff had knowledge of a number of relevant matters: firstly, that it is extremely difficult to prove a doctor’s negligence; secondly, that the limitation period ended on 28 August 2010; and thirdly, that in May 2011 she had been informed by Avant that there was no basis for any claim for compensation against Dr Rosen. There were arrangements for the plaintiff to obtain a report of Dr Cooper. It is not clear, but there may be an explanation as to why the plaintiff did not proceed to obtain a report from Dr Cooper.

101. The plaintiff’s lawyer did not receive a medico-legal opinion facilitating an informed professional judgment as to the fault of the defendants until 6 September 2018, when they obtained the expert report of Dr O’Connor. The report indicated that Dr Rosen had opted to perform a hysterectomy and culposuspension in response to long-term heavy periods, which could have been appropriately treated more conservatively.

102. It is arguable that it was only on the 6 September 2018 that the plaintiff became aware that there was a cause of action against the insured company. It then follows that the three year post discoverability limitation period should be understood to run from that date.

Associate Professor Lam

Section 50D(1)(a) – the fact that the injury concerned has occurred

103. On 25 February 2008, Associate Professor Lam performed a procedure on the plaintiff using Prolift and Surgisis mesh.

104. The plaintiff’s knowledge of the injury occurred almost immediately following the surgery. The fact that she was aware of the injury is supported by the following complaint she lodged with the NSW Health Care Complaints Commission on 12 May 2011:

“[S]traight away post operatively I was in EXTREME pain… I became increasingly unwell, in extreme pain, continued bleeding and unable to have a bowel motion…required further surgery on April 30th, 2008 for removal of mesh protrusions and adhesions and insertion of pig skin which fell out several days after surgery…”

105. As such, in relation to Associate Professor Lam, the plaintiff had knowledge of the fact that the injury occurred well before the 18 November 2015.

Section 50D(1)(c) – the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action

106. Knowledge of actionability is necessary before s 50D(1)(c) is satisfied. It must be shown that the party has sufficient prospects of recovering enough damages for it to be worth litigating.

107. The plaintiff would have to have known, or be in a position where she ought to have known, that she have sufficient prospects of recovering enough damages for it to be worth litigating. That would require, at the least, knowledge that the injury in question is one for which the law would hold the defendant liable in damages and that the damages that could be recovered are large enough to be worth the time and trouble of suing.

108. On 26 June 2013, the plaintiff received correspondence from Maurice Blackburn Lawyers to the effect that they would not file her claim in Australia, and would not be prepared to litigate her claim as an individual in Australia, on a no-win-no-fee basis. Their justification was that the compensation that the plaintiff might receive would not justify the likely legal costs that she would have to spend in bringing the claim.

109. It is arguable that it was not until the plaintiff received the medico-legal report of Professor O’Connor on 6 September 2018 that she was made aware about the actionability of her claim.

Section 50 D(1)(b) – the fact that the injury was caused by the fault of the defendant

110. Establishment of fault in a medical negligence claim requires the exercise of both legal and medical expertise. A factual appreciation of fault requires an informed professional judgment.

111. On 5 March 2010, the NSW Medical Board received an undated letter from the plaintiff in which she stated she had “sought legal advice” but was aware that “it is EXTREMELY difficult to prove a doctor’s negligence.”

112. On 19 July 2010, the plaintiff provided signed authority for the release of her medical records to Shine Lawyers.

113. On 24 March 2011, the plaintiff was advised by Shine Lawyers that the expert opinion that it had obtained did not support a claim of negligence against Associate Professor Lam. Therefore, as at 24 March 2011, the plaintiff had received legal advice that there was no cause of action against Associate Professor Lam.

114. Nevertheless, on 9 October 2012, the plaintiff commenced discussions with Maurice Blackburn Lawyers.

115. On 22 February 2013, the plaintiff was advised by Maurice Blackburn Lawyers that in acting as her solicitors, they would not be investigating whether she had a claim against the surgeon who implanted or removed the surgical mesh.

116. As stated earlier, on 26 June 2013, the plaintiff received further correspondence from Maurice Blackburn Lawyers to the effect that they would not file her claim in Australia because it was their view that the legal costs would eclipse her likely award in damages.

117. Maurice Blackburn also referred the plaintiff to Shine Lawyers should she wish to join the class action against Gynecare that was already underway in Australia.

118. Maurice Blackburn Lawyers demonstrated a willingness to facilitate the filing of the plaintiff’s claim in the US Federal Court for the Southern District of West Virginia along with McNulty Law.

119. The plaintiff made efforts to join the class action against Gynecare as well as to pursue her claim in the Federal Court for the Southern District of West Virginia against the manufacturer of the surgical mesh.

120. In a complicated medical negligence claim, a plaintiff can only have understanding as to fault when she receives professional advice and information to that effect. It is arguable that the plaintiff first had knowledge of the fault of the second defendant when she received the findings of Professor O’Connor on 6 September 2018, at the earliest. The three year post-discoverability limitation period should be understood to run from this date.

121. It is arguable that the plaintiff has passed through ss 50(1)(b) and 50(1)(c) thresholds in relation to Associate Professor Lam.

Conclusion

122. Limitation questions should be determined in interlocutory proceedings only in the clearest of cases. The onus is on the defendants to establish that the plaintiff’s claims are statute barred.

123. It is not clear that the plaintiff’s claims are statute barred against the first and second defendants. The defendants’ claims cannot be said to represent the “clearest of cases”. For the reasons given earlier, these proceedings are not an abuse of process, there are reasonable causes of action against both defendants, and they should not be dismissed or struck out on the basis that the plaintiff’s claims are statute barred.

124. The result is that defendants’ notice of motion is dismissed.

Costs

125. Costs are discretionary. Costs usually follow the event. The defendants are to pay the plaintiff’s costs on an ordinary basis.

The Court Orders that:

1. The defendants’ notice of motion filed 30 July 2019 is dismissed.

2. The defendants are to pay the plaintiff’s costs on an ordinary basis.

**********

Decision last updated: 06 April 2020